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[ { "docid": "13471796", "title": "", "text": "review of the exclusion hearing. The Thorsteinssons then filed the present petition for review of the Board’s denial of their request to reopen the deportation proceedings. II The admission and exclusion of aliens is a matter vested almost exclusively in the executive and legislative branches of the federal government. Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977); Ventura-Escamilla v. INS, 647 F.2d 28, 30 (9th Cir.1981). Accordingly, judicial review in immigration cases is limited to those matters “authorized by treaty or by statute, or ... required by the paramount law of the Constitution.” Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n. 21, 96 S.Ct. 1895, 1904 n. 21, 48 L.Ed.2d 495 (1976), quoting Fong Yue Ting v. United States, 149 U.S. 698, 713, 13 S.Ct. 1016, 1022, 37 L.Ed. 905 (1893). Under section 106(c) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1105a(e), our review of deportation proceedings is extremely limited. An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations or if he has departed from the United States after the issuance of the order. Id. (emphasis added). A similar administrative regulation precludes immigration judges and the Board from considering a motion to reopen deportation proceedings after an alien has departed from the United States. 8 C.F.R. § 3.2 (1983). Although the Thorsteinssons voluntarily left the United States, they were “deported” for purposes of the Act. 8 U.S.C. § 1101(g). They remained technically outside of the country during their “parole” pending the resolution of their exclusion proceedings. See 1 C. Gordon & H. Rosenfield, supra note 1, at § 2.54. It is also clear that they failed to exhaust their administrative remedies by not appealing the immigration judge’s order in their deportation proceedings. Judicial review of their deportation order thus appears to be precluded by the plain language of 8 U.S.C. § 1105a(c). See Ramirez-Juarez v. INS, 633 F.2d 174, 176 (9th" } ]

[ { "docid": "11805857", "title": "", "text": "determine its statutory jurisdiction to entertain Petitioner’s claim. 1. Review of a Deportation Order under the INA Statutory Provisions Under the transitional rules of IIR-IRA regarding judicial review of deportation orders, the statute provides that “the petition for judicial review shall be filed with the court of appeals.” IIRIRA § 309(c)(4)(C). It also provides that “there shall be no appeal of any discretionary decision under [8 U.S.C. § 1182(c) IIRIRA § 309(c)(4)(E). Additionally, it states that “there shall be no appeal permitted in the case of an alien who is ... deportable by reason of having committed a criminal offense covered in ... [8 U.S.C. § 1251(a)(2)(B) (controlled substance violations) ].” IIRIRA 309(c)(4)(G). This court finds that the express language of the transitional rules of IIRIRA limits the judicial review available to all aliens and eliminates judicial review for certain criminal aliens. While the elimination of judicial review for certain criminal aliens is a new concept, the limitation regarding the forum for judicial review of a deportation order is not. Prior to the enactment of AEDPA, 8 U.S.C. § 1105a(a) provided for exclusive review of deportation orders in the court of appeals, and aliens under orders of exclusion could “obtain judicial review of such order by habeas corpus proceedings [filed in the district court] and not otherwise.” 8 U.S.C. § 1105a(b). This court has consistently held that review of deportation orders was not to be undertaken by district courts. See Thomas v. INS, 975 F.Supp. 840 (W.D.La.1997); Ozoanya v. Reno, 979 F.Supp. 447 (W.D.La.1997). This court is aware that its restrictive view of district court jurisdiction over deportation orders was not universally endorsed by all other courts. Several courts have held that former 8 U.S.C. § 1105a(a)(10) provided district courts with jurisdiction to review final orders of deportation through a petition for writ of habeas corpus. Sandoval v. Reno, 166 F.3d 225 (3d Cir.1999); Auguste v. Reno, 152 F.3d 1325 (11th Cir.1998); Farquharson v. INS, 31 F.Supp.2d 403 (D.N.J.1999). However, this court’s reading of § 1105a(a) in connection with § 1105a(a)(10) caused it to hold that the jurisdiction provided to" }, { "docid": "13386113", "title": "", "text": "lack jurisdiction. Both bases rest, at least in part, on 8 U.S.C. § 1105a(c) (1988), which provides in pertinent part: An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations or if he has departed from the United States after the issuance of the order. One possible ground on which we would lack jurisdiction is the petitioner’s departure on January 23, 1995. Arguably, since Mejia departed on January 23, 1995 — after the issuance of the August 26, 1994, order — the provision could leave us without jurisdiction to review the August order. This court recently held that § 1105a(c) “constitutes a clear jurisdictional bar, and admits of no exceptions.” Roldan v. Racette, 984 F.2d 85, 90 (2d Cir.1993). At oral argument, counsel for the petitioner expressed concern that this court’s strict reading of this provision would deprive this court of jurisdiction in the present matter, despite the questionable circumstances of the petitioner’s involuntary return. Petitioner’s counsel urged this court to consider a possible exception to this jurisdictional rule recently mentioned by the First Circuit in Baez v. INS, 41 F.3d 19, 25 (1st Cir.1994). The Baez court, while agreeing with Roldan’s strict interpretation and calling § 1105a(c)’s jurisdictional bar “absolute,” nevertheless suggested that a court might maintain jurisdiction in the exceptional case of “knowingly unlawful deportation by the INS for the specific purpose of shortstopping an alien’s right to review.” Baez, 41 F.3d at 25. Perhaps concerned that if this court were to adopt such an exception it would apply here, the Government at oral argument contended that the INS’s January 23 return of Mejia following the BIA’s exclusion order was “irrelevant” to this case — an appeal of the original deportation proceeding. According to the Government, by January 23 jurisdiction had long been lost because the petitioner had departed voluntarily in April 1994, while his initial appeal to the BIA in the deportation case was pending. We need not consider whether the proposed" }, { "docid": "22972479", "title": "", "text": "establish a principle that where no realistic opportunity for judicial review by way of habeas review existed, an alien’s failure to seek such review will not be deemed to preclude a collateral attack on a deportation order under Section 1326(d)(2). In the present case, Copeland had no realistic opportunity for habeas review not only because of the lack of time but also because of the legal uncertainties as to the availability of habe-as review. Copeland’s deportation order became administratively final on November 27, 1996, when the IJ ordered him deported. See 8 C.F.R. § 1003.39 (“Except when certified to the [BIA], the decision of the [IJ] becomes final upon waiver of appeal or upon expiration of the time to appeal if no appeal is taken, whichever occurs first.”) (formerly codified at 8 C.F.R. § 3.39). After deportation, further administrative and habeas review were precluded by a pre-IIRIRA provision which applied to Copeland under the transitional rules of IIRI-RA. That provision, former Section 106 of the INA, stated that “[a]n order of deportation ... shall not be reviewed by any court if the alien ... has departed the United States after the issuance of the order.” 8 U.S.C. § 1105a(c) (1995). Section 106 applied to aliens subject to IIRI-RA’s transitional rules governing judicial review — aliens who were in deportation proceedings “as of’ April 1, 1997, and in whose cases final orders of deportation were entered after October 30, 1996. IIR-IRA § 309(c). Copeland met these criteria, because his final deportation order was entered on November 27, 1996. Thus, Copeland was statutorily barred from filing a habeas petition after he was deported. See Swaby v. Ashcroft, 357 F.3d 156, 160 n. 8 (2d Cir.2004) (noting that habeas petitions filed by aliens subject to INS Section 106 mooted by deportation); Duran v. Reno, 197 F.3d 63, 63 (2d Cir.1999) (dismissing habeas petition filed by deported alien subject to INA Section 106 as moot). Swaby held that a habeas petition filed by an alien under IIRIRA’s new judicial review provisions was not mooted by deportation because a collateral consequence of that deportation —" }, { "docid": "4781601", "title": "", "text": "motion.” 17 Fed.Reg. 11,469, 11,475 (Dec. 19, 1952) (codified at 8 C.F.R. § 6.2); see In re Armendarez-Mendez, 24 I & N Dec. 646, 648 (BIA Oct. 6, 2008). Since that time, the BIA has consistently interpreted the post-departure bar as a limitation on its jurisdiction to entertain motions to reopen or reconsider filed by aliens who have departed the country. In re Armendarez-Mendez, 24 I & N Dec. at 648. In 1961, Congress imposed a similar statutory restriction on the ability of Article III courts to hear appeals from deportation or exclusion orders filed by aliens who had already departed the country: “An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations or if he has departed from the United States after the issuance of the order.” 8 U.S.C. § 1105a(c) (repealed 1996); see In re Armendarez-Mendez, 24 I & N Dec. at 649. The law surrounding motions to reopen or reconsider changed again in 1996, when Congress amended the Immigration and Naturalization Act (INA) with the enactment of IIRIRA. See William, 499 F.3d at 330. IIRIRA repealed 8 U.S.C. § 1105a(c), replacing it with a new provision governing Article III review of deportation and exclusion orders that did not contain a post-departure bar. See 8 U.S.C. § 1252; see William, 499 F.3d at 330. Additionally, IIRIRA codified procedures for filing motions to reopen and motions to reconsider, incorporating several of the existing regulatory restrictions on filing those motions but, notably, excluding the post-departure bar. See 8 U.S.C. § 1229a(c); see also William, 499 F.3d at 330. Following the enactment of IIRIRA, the Attorney General passed a new set of regulations governing motions to reopen or reconsider that, despite the repeal of 8 U.S.C. § 1105a(c) and the lack of explicit authorization in 8 U.S.C. § 1229a(e), again imposed a post-departure bar nearly identical to those contained in previous regulations: “A motion to reopen or a motion to reconsider [before the BIA] shall not" }, { "docid": "13386118", "title": "", "text": "is taken, an<] the Board approves the order, it then becomes final and may be executed. 8 C.F.R. §§ 243.1, 243.3 (1994). A final order of the BIA is appeal-able to the courts of appeals. 8 U.S.C. § 1105a(a). Section 3.4 addresses the situation where an immigration judge issues a deportation order, the alien appeals to the BIA, and the alien then leaves the country. Under § 3.4, the appeal is deemed withdrawn and the initial decision becomes final as if there had been no appeal to the BIA. To determine whether § 3.4 is legislative or interpretive, we review two statutory provisions: 8 U.S.C. § 1101(g) (section 101(g) of the Immigration and Nationality Act), and 8 U.S.C. § 1105a(c) (section 106(c) of the Act). Section 1101(g) provides that “any alien ordered deported ... who has left the United States, shall be considered to have been deported in pursuance of law.” Section 1105a(c) provides: An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations or if he has departed from the United States after the issuance of the order. The petitioner argues that these statutory provisions have properly been interpreted to concern only final orders. That is, under these provisions, an alien who departs after a final order executes his own deportation and divests this court of jurisdiction. By extending that principle to orders of immigration judges that have yet to be addressed on appeal to the BIA, the petitioner contends, the agency rule creates new rights and duties and therefore is legislative. We disagree. We begin our análysis with § 1105a(a), which vests in the courts of appeals jurisdiction to review “final orders of deportation.” 8 U.S.C. § 1105a(a). Section 1105a(e) describes circumstances under which an alien loses the right to judicial review that § 1105a(a) would otherwise afford. Under § 1105a(c), loss of jurisdiction occurs when an alien has failed to exhaust administrative remedies, or when he has departed after issuance of an" }, { "docid": "23534436", "title": "", "text": "(3d Cir.1996) (citation omitted), exhaustion will be deemed statutorily mandated. The predecessor to 8 U.S.C. § 1252(d)(1), which is the relevant statute here, was 8 U.S.C. § 1105a(c). Section 1105a(e) was repealed in 1996 and replaced by the current § 1252(d). The predecessor statute, just as the current statute, denied review of orders of deportation or removal where an alien had not exhausted administrative remedies. Section 1252(d)(1) reads, in relevant part: “A court may review a final order of removal only if-(l) the alien has exhausted all administrative remedies available to the alien as of right....” 8 U.S.C. § 1252(d)(1) (emphasis supplied). Section 1105a(e) states the same requirements in essentially the same language: (c) Exhaustion of administrative remedies .... An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right.... Every petition for review or for habeas corpus shall state whether the validity of the order has been upheld .... 8 U.S.C. § 1105a(c) (repealed 1996) (emphasis supplied). Because both statutes in their “review” clauses are virtually identical and because 8 U.S.C. § 1105a(c) was the subject of our Massieu opinion, we find Massieu’ s analysis and discussion instructive and controlling here. We held in Massieu that the exhaustion requirement of § 1105a(c) was statutory and thus jurisdictional, thereby barring a petition for habe-as corpus in the district court where there was no final order and no exhaustion of administrative remedies. We also held that Massieu’s claim-that the provision of the INA under which he was deportable was unconstitutional-did not provide an exception to the jurisdictional requirements óf § 1105a(c) because such a claim was not collateral to his deportability and because he could receive meaningful review of his claims in this court after final administrative action. Massieu, 91 F.3d at 426. In Massieu, we acknowledged that the immigration courts are not authorized to consider the constitutionality of their own governing statute, but we were persuaded by the fact that exhaustion could well resolve any controverted matter-without the need for involvement by" }, { "docid": "17192089", "title": "", "text": "PER CURIAM. Respondent INS moves to dismiss this cause as jurisdictionally deficient. Fed. R. App. P. 27; 10th Cir. R. 10.2.8 & 27.2.1. Petitioner seeks review of the decision of the Board of Immigration Appeals (Board). The Board dismissed petitioner’s appeal from a decision of the immigration judge finding petitioner deportable under § 241(a)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1251(a)(2), and ineligible for relief from deportation. Jurisdiction to review a final order of deportation by the Board arises under § 106(a) of the Act, 8 U.S.C. § 1105a(a) and 28 U.S.C. ch. 158 pertaining to review of orders of federal agencies. Michelson v. INS, 897 F.2d 465, 467 (10th Cir.1990). However, § 106(c) of the Act, 8 U.S.C. § 1105a(c), provides in part: An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations or if he has departed from the United States after the issuance of the order. (emphasis added). The INS contends that petitioner’s deportation eliminates our jurisdiction to review his deportation order. We agree. “The statute’s command is unequivocal[:]” once petitioner departed the United States via deportation, a deportation order may not be reviewed by “any court.” Umanzor v. Lambert, 782 F.2d 1299, 1303 (5th Cir.1986); see also Quezada v. INS, 898 F.2d 474, 476-77 (5th Cir.1990); Asai v. Castillo, 593 F.2d 1222, 1223-24 (D.C.Cir.1979). The right to obtain judicial review of a final deportation order does not require the INS to defer deportation; a stay must be obtained. 8 U.S.C. § 1105a(a)(7); Umanzor, 782 F.2d at 1303. The record establishes that no stay was obtained and petitioner has been deported. Thus, we are without jurisdiction to review this deportation order. See Quezada, 898 F.2d at 477. PETITION DISMISSED." }, { "docid": "22607172", "title": "", "text": "that the IJ or the BIA erred as a matter of law or fact. INA § 240(c)(5)(C), 8 U.S.C. § 1229a(c)(5)(C); 8 C.F.R. § 3.2(b)(1) (governing motions to reconsider before the BIA); 8 C.F.R. § 3.23(b)(2) (governing motions to reconsider before the IJ). An alien must file a motion to reconsider within thirty days of the IJ's or the BIA's decision. INA § 240(c)(5)(B), 8 U.S.C. § 1229a(c)(5)(B); 8 C.F.R. § 3.2(b)(2); 8 C.F.R. § 3.23(b)(1). . The overstay provision has since been reco-dified at INA § 237(a)(l)(C)(i), 8 U.S.C. § 1227(a)(l)(C)(i). . The BIA also held that if Socop's motion were construed as. a motion to reconsider, it was untimely because it was not filed within thirty days of the BIA's decision. This aspect of the BIA’s decision is not on appeal. . IIRIRA replaced the old statutory section governing judicial review of deportation and exclusion orders, INA § 106, 8 U.S.C. § 1105a, with a new section governing judicial review of \"removal” orders, INA § 242, 8 U.S.C. § 1252. The new review provision does not apply to cases that are governed by the transitional rules; these cases continue to be governed by INA § 106, as amended by the transitional rules. See Avetova-Elisseva v. INS, 213 F.3d 1192, 1195 n. 4 (9th Cir.2000). . INA 106(c), 8 U.S.C. § 1105a(c), now repealed, states: \"An order of deportation ... shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations....” This exhaustion requirement applies to Socop because ”[l]he transitional rules incorporate 8 U.S.C. § 1105a(c)...\" Hose v. INS, 180 F.3d 992, 996 (9th Cir.1999). The post-IIRIRA exhaustion requirement is codified at INA § 242(d), 8 U.S.C. § 1252(d). . See Kondo v. Katzenbach, 356 F.2d 351 (D.C.Cir.1966), rev’d sub nom. Honda v. Clark, 386 U.S. 484, 87 S.Ct. 1188, 18 L.Ed.2d 244 (1967). The appellants' opening brief before the court of appeals mentioned only estoppel but did not mention tolling. See, e.g., Br. for Appellants at (i), Kondo, 356 F.2d 351" }, { "docid": "9334028", "title": "", "text": "DIANE P. WOOD, Circuit Judge. Ioan Sofinet is a 34-year-old Romanian who is seeking asylum in the United States. Thus far, he has been unsuccessful: first the Chicago office of the Immigration and Naturalization Service (“INS”) found him deportable and denied his petition for asylum, after a hearing before an immigration judge (“IJ”) and then the Board of Immigration Appeals (“BIA”) affirmed that determination. Next, Sofinet filed a notice of appeal to this court, as he is permitted to do under the Immigration and Naturalization Act (“INA”) § 106(a), 8 U.S.C. § 1105a(a), and he sought a stay of deportation pending our consideration of his appeal. (8 U.S.C. § 1105a was repealed by the Illegal Immigration Reform and Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009. However, because Sofinet was in deportation proceedings on the effective date of the Act, the transitional rules provide for judi cial review under § 1105a(a) as it existed before IIRIRA, subject to a caveat discussed further below. IIRIRA § 309(c)(4).) The INS did not oppose his request for a stay, and on March 23, 1999, this panel granted the stay and ordered the case to proceed to briefing and argument. This opinion explains in somewhat greater detail why we found the stay to be appropriate. Before Congress amended the INA in 1996, section 106(a)(3) of the statute provided for an automatic stay upon the service of a petition for review for most aliens, unless a court ordered otherwise. See 8 U.S.C. § 1105a(a)(3), the full text of which we reproduce in the margin. Like many other aspects of the law, this one was changed by IIRIRA. Under the transitional rules established by IIRIRA for judicial review of cases of aliens who were placed in deportation proceedings before April 1, 1997, and whose final orders of deportation were entered more than 30 days after the date of enactment of IIRI-RA — ie. after October 30, 1996 — the presumption with respect to stays pending appellate review has essentially been reversed. Section 309(c)(4)(F) of IIRIRA states that “service of the petition for review" }, { "docid": "13386119", "title": "", "text": "administrative remedies available to him as of right under the immigration laws and regulations or if he has departed from the United States after the issuance of the order. The petitioner argues that these statutory provisions have properly been interpreted to concern only final orders. That is, under these provisions, an alien who departs after a final order executes his own deportation and divests this court of jurisdiction. By extending that principle to orders of immigration judges that have yet to be addressed on appeal to the BIA, the petitioner contends, the agency rule creates new rights and duties and therefore is legislative. We disagree. We begin our análysis with § 1105a(a), which vests in the courts of appeals jurisdiction to review “final orders of deportation.” 8 U.S.C. § 1105a(a). Section 1105a(e) describes circumstances under which an alien loses the right to judicial review that § 1105a(a) would otherwise afford. Under § 1105a(c), loss of jurisdiction occurs when an alien has failed to exhaust administrative remedies, or when he has departed after issuance of an order. See 8 U.S.C. § 1105a(c). An immigration judge’s order, for example, can become a final agency order when an alien fails to appeal to the BIA or waives his right to appeal to the BIA. See 8 C.F.R. § 243.1 (1994). However, under § 1105a(c), a court of appeals would lack jurisdiction to review that final order, because the alien had failed to exhaust available administrative remedies. See, e.g., Joo v. INS, 813 F.2d 211, 212 (9th Cir.1987) (per curiam) (“A waiver of the right to appeal is a failure to exhaust administrative remedies.”). Similarly, if an alien departs this country after the issuance of a final order that would otherwise be subject to judicial review, this court loses jurisdiction. See, e.g., Hajnal v. INS, 980 F.2d 1247, 1247-48 (per curiam) (9th Cir.1992) (finding no jurisdiction where alien departed after BIA affirmance of deportation order). Whereas § 1105a(c) clearly concerns only final orders, § 1101(g) does not indicate whether an alien effectuates his deportation by leaving the country after the issuance of an order" }, { "docid": "22630710", "title": "", "text": "U.S.C. § 1105a(c) (1994) (repealed 1996). The IIRIRA repealed § 106 of the INA. See Sofinet v. INS, 188 F.3d 703, 708 (7th Cir.1999). However, the transitional rules incorporate § 106(c), 8 U.S.C. § 1105a(c). See Sofinet, 188 F.3d at 708 (“Because the transitional rules apply to Sofinet, § 1105a(c) still applies to him.”); Hose v. INS, 180 F.3d 992, 996 (9th Cir.1999) (en banc) (“The transitional rules prevent this court from reviewing exclusion orders when the petitioner has departed the country. The transitional rules . incorporate 8 U.S.C. § 1105a(c)....”). We have previously relied on § 1105a(c) to bar collateral attacks on prior deportation orders after their execution. In Cipriano, petitioner was deported in 1975, based on various criminal offenses. See Cipriano, 24 F.3d at 763. After deportation to Italy, he reentered without inspection. See id. The INS subsequently charged Cipriano with deportability under INA § 241(a)(2) [now § 241(a)(1)(B) ] for entry without inspection and denied discretionary relief. See id. at 764. While the 1975 deportation barred Cipriano’s claim for discretionary relief, Cipriano claimed that he was entitled to relief from the 1975 order because that order was unconstitutional. See id. We held that “[o]ur precedents foreclose review of that claim.” Id. We noted that § 1105a(c) .bars review of orders of deportation after departure, and held that this “jurisdictional infirmity” was unaffected by the fact that the 1975 order was allegedly unconstitutional. Id. Cipriano dealt with a petition for review. However, the cases it found to preclude Cipriano’s claim, Quezada v. INS, 898 F.2d 474 (5th Cir.1990) and Umanzor v. Lambert, 782 F.2d 1299 (5th Cir.1986), dealt with habeas corpus petitions. See Cipriano, 24 F.3d at 764. In Umanzor, we held that the “command” of § 1105a(c) was “unequivocal.” See Umanzor, 782 F.2d at 1302. Therefore, we expressly rejected the proposition that § 1105a(c) applied only if the prior “departure” was legally effected. See id. (rejecting this proposition because “if the exception is taken to its logical conclusion, any error or procedural defect at any point in the alien’s deportation saga ... would render the departure illegal." }, { "docid": "22094505", "title": "", "text": "this Court a timely petition for review of the BIA’s decision. decision holding Magana-Pizano statutorily ineligible for relief was issued March 17, 1997, IIRIRA’s transitional provisions apply to his case. See IIRIRA § 309(c)(4); Kalaw, 133 F.3d at 1150. Magana-Pizano also filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of Arizona. In his habeas petition, he argued that the BIA’s decision and interpretation of AEDPA section 440(d) violated the Equal Protection Clause of the Constitution. The district court dismissed the complaint without prejudice for lack of jurisdiction, explaining that the statutory basis for habeas review for aliens in custody pursuant to an order of deportation was repealed by a different section of AEDPA. See AEDPA § 401(e), repealing 8 U.S.C. § 1105a(a)(10). Magana-Pizano filed a timely appeal, and we sua sponte consolidated both matters. II The Supreme Court’s decision in American-Arab does not alter our analysis of Magana-Pizano’s petition for review of the BIA decision holding that he was ineligible for discretionary relief under INA § 212(c). Magana-Pizano challenged the BIA’s interpretation of AEDPA section 440(d) and its applicability to his case. In Magana-Pizano I, we held that we could not reach the merits of the petition because Congress had repealed our jurisdiction to entertain the petition. We have confirmed this holding in Briseno v. INS, 192 F.3d 1320, 1322 (9th Cir.1999). Immigration proceedings initiated by the INS before IIRIRA’s general effective date of April 1, 1997, in which a final deportation or exclusion order was filed after October 30, 1996, are governed by interim transitional rules. See IIRIRA § 309(c); Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). Because the BIA’s The IIRIRA provision relevant to this appeal, section 309(c)(4)(G), provides: 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" }, { "docid": "17193177", "title": "", "text": "judge (IJ). Berehe appealed to the Board of Immigration Appeals (BIA). He challenged the characterization of his conviction as a firearms offense and the I J’s finding that he was not eligible for discretionary relief under 8 U.S.C. § 1182(c). The BIA affirmed the I J’s decision on January 15, 1997. Berehe filed a petition for review with this court on February 3,1997. The INS filed a motion to dismiss the petition for review for lack of jurisdiction, contending AEDPA § 440(a) and IIRIRA § 309(c)(4)(G) divest this court of jurisdiction over Berehe’s petition for review. AEDPA § 440(a) amended 8 U.S.C. § 1105a(a)(10) to state that “[a]ny final order of deportation against an alien who is deportable by reason of having committed” certain specified criminal offenses, including certain firearm of fenses, “shall not be subject to review by any court.” We recently held that AEDPA § 440(a) applies to petitions for review pending on or after the date of AEDPA’s enactment. Fernandez v. INS, 113 F.3d 1151 (10th Cir.1997). Therefore, it applies to Berehe’s petition for review, filed in February 1997. IIRIRA was enacted on September 30, 1996. Although most of its provisions apply only to proceedings commenced on or after April 1,1997, it also adopted transitional rules which apply in the ease of an alien who is in exclusion or deportation proceedings before IIRIRA’s effective date, April 1, 1997, but the final order of exclusion or deportation is entered more than thirty days after IIRIRA’s September 30, 1996 date of enactment. See IIRIRA § 309(c)(4). The transitional rules state in relevant part that, “there shall be no appeal permitted in the ease of an alien who is inadmissable or deportable by reason of having committed a criminal offense covered in” the enumerated sections, including firearm offenses. IIRIRA § 309(c)(4)(G). Because Berehe’s deportation proceedings commenced before April 1, 1997, and the final order of deportation was entered after October 30, 1996, the transitional rules apply to Berehe, and preclude him from filing a petition for review. In addition, AEDPA § 440(d) amends 8 U.S.C. § 1182(e) so that discretionary" }, { "docid": "23034361", "title": "", "text": "F. Alderete Gen. Contractors v. United States, 715 F.2d 1476, 1480 (Fed.Cir.1983). However, when subsequent events render the case non-justiciable so that no federal court would have jurisdiction, then transfer is inappropriate. Regardless of which construction of the pleadings we might adopt, jurisdiction would not lie and transfer would be inappropriate. If we construe Hose’s petition as one merely seeking a stay, the case is moot because of Hose’s deportation. With no extant controversy, the case would not qualify for federal court adjudication. See Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). Thus, transfer would be improper. If we adopt Hose’s construction of the pleadings, transfer would be inappropriate, because the transitional rules prevent this court from reviewing exclusion orders when the petitioner has departed the country. The transitional rules incorporate 8 U.S.C. § 1105a(c), which provided in relevant part: An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigrations laws ... or if he has departed from the United States after the issuance of the order. 8 U.S.C. § 1105a(c) (emphasis supplied). Thus, because Hose departed the United States after issuance of the panel’s decision, we would lack jurisdiction under the transitional rules to entertain her petition for review. See id.; see also Thorsteinsson v. INS, 724 F.2d 1365, 1367 (9th Cir.1984) (interpreting the jurisdictional limits of 8 U.S.C. § 1105a(c)). Because Hose’s petition for review would not be subject to judicial review upon transfer, transfer pursuant to 28 U.S.C. § 1631 would be inappropriate. IV In summary, the panel opinion’s jurisdictional statements are untenable after the Supreme Court’s decision in American-Arab. Nonetheless, Hose is not entitled to relief. If Hose’s petition is construed as a petition for review, the district court’s dismissal of Hose’s petition was proper because, under IIRIRA’s transitional rules, exclusive jurisdiction over petitions for review of exclusion orders is vested in the federal courts of appeals. If Hose’s petition is construed as one seeking" }, { "docid": "22393402", "title": "", "text": "(“IIRIRA”), has jurisdiction to review the BIA’s denial of Panjwani’s untimely motion to reopen. Generally, this Court has jurisdiction to review appeals of deportation proceedings under § 106 of the INA, 8 U.S.C. § 1105a (1994), as amended by § 309(c)(4) of IIRIRA. Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 303 (5th Cir.1999). IIRIRA’s transitional rules generally apply to deportation cases commenced before IIRIRA’s general effective date of April 1, 1997, and where the BIA’s final order of exclusion or deportation was entered on or after October 30, 1996. See IIRIRA § 309(c)(1), (4), 110 Stat. 3009-625, 625-27; see also Lopez De Jesus v. INS, 312 F.3d 155, 158 (5th Cir.2002). Because Panjwani’s deportation proceedings commenced in March 1997, and the BIA order made the subject of this appeal was entered in November 2003, Panjwani’s case is governed by IIRIRA’s transitional rules. Under § 309(c) of IIRIRA, this Court has jurisdiction to review a BIA decision under § 106(a) of the INA, 8 U.S.C. § 1105a (1994), unless a specified exception applies. The specified exceptions preclude judicial review of, inter alia, “any discretionary decision under section 212(c), 212(h), 212(i), 244, or 245 of the Immigration and Nationality Act (as in effect as of the date of the enactment of the [INA]).” IIRIRA § 309(c)(4)(E), 110 Stat. 3009-626. The Government argues the untimely filing of a motion to reopen restricts the scope of this Court’s review. Specifically, the Government contends that because an alien is required to exhaust his available administrative remedies before seeking review of a deportation order, 8 U.S.C. § 1105a(e) (1994), the failure to do so deprives this Court of jurisdiction over the underlying claims. The Government correctly observes that the relevant federal regulations require a party to file a motion to reopen “no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). Panjwani’s motion to reopen was filed 92 days after the order of deportation was entered, and therefore, according to the Government, Panjwani failed to exhaust his administrative remedies, thus" }, { "docid": "22972480", "title": "", "text": "be reviewed by any court if the alien ... has departed the United States after the issuance of the order.” 8 U.S.C. § 1105a(c) (1995). Section 106 applied to aliens subject to IIRI-RA’s transitional rules governing judicial review — aliens who were in deportation proceedings “as of’ April 1, 1997, and in whose cases final orders of deportation were entered after October 30, 1996. IIR-IRA § 309(c). Copeland met these criteria, because his final deportation order was entered on November 27, 1996. Thus, Copeland was statutorily barred from filing a habeas petition after he was deported. See Swaby v. Ashcroft, 357 F.3d 156, 160 n. 8 (2d Cir.2004) (noting that habeas petitions filed by aliens subject to INS Section 106 mooted by deportation); Duran v. Reno, 197 F.3d 63, 63 (2d Cir.1999) (dismissing habeas petition filed by deported alien subject to INA Section 106 as moot). Swaby held that a habeas petition filed by an alien under IIRIRA’s new judicial review provisions was not mooted by deportation because a collateral consequence of that deportation — a lifetime bar to entering the United States — was sufficient to maintain a live case or controversy. 357 F.3d at 160-61. Swaby did not address the issue of whether IIRIRA allows aliens to initiate habeas petitions after deportation, an entirely different issue governed by the statutory requirement that a habeas petitioner be “in custody” at the time of filing, 28 U.S.C. §§ 2254(a), 2255, rather than the constitutional case or controversy requirement. We need not reach the latter issue because Copeland was statutorily barred from filing a habeas petition after his deportation. Copeland therefore had habeas relief available, if at all, only before his deportation on November 24, 1998. However, had Copeland sought habeas review before filing the motion to reopen with the IJ and appealing the denial of that motion, he would have faced the defense that he had not exhausted his administrative remedies because his appeal to the BIA was still pending at the time of his deportation. An alien who waives his appeal cannot seek habeas relief when the order becomes" }, { "docid": "23034357", "title": "", "text": "1105a(a); Duldulao v. INS, 90 F.3d 396, 397-98 (9th Cir.1996). IIRIRA unified judicial review procedures applicable to final orders of deportation and exclusion. IIRIRA repealed 8 U.S.C. § 1105a(b), which provided for review of final exclusion orders by writs of habeas corpus filed in the district courts. See IIRIRA § 306(b). In its stead, IIRI-RA’s transitional rules vested jurisdiction in the courts of appeals for review of final orders of deportation and exclusion. See IIRIRA § 309(c)(4)(A). Pre-IIRIRA law applies to cases in which a final deportation or exclusion order was filed on or before October 30, 1996. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). IIRIRA’s transitional rules apply to cases in which a final deportation or exclusion order was filed after October 30, 1996, and which were pending before April 1, 1997. See id. Finally, “IIRIRA’s permanent provisions pertain to removal proceedings initiated by the INS on or after April 1, 1997.” Id. Because Hose’s final order of exclusion was issued on April 25, 1997, and she was in exclusion proceedings before April 1, 1997, IIRIRA’s transitional rules apply to her case. However, apparently under the belief that pre-IIRIRA law applied to her exclusion order, she filed a petition for a writ of habeas corpus in the district court. The relief Hose actually sought is a matter of some dispute, and her habeas petition is far from a model of clarity. The district court, the panel, and the government in its initial briefing treated her pleading as a petition for review misfiled as a habeas petition, and Hose urges us to do so here. On rehearing, the government contends that Hose’s initial petition merely sought a stay pending exhaustion of administrative and judicial remedies. It is unnecessary for us to resolve this difference of opinion because, under either pleading theory, Hose’s petition is not subject to further judicial review. If we adopt Hose’s interpretation of the habeas corpus petition as a pleading seeking judicial review of the merits of the exclusion order, jurisdiction did not lie in the district court. IIRIRA’s transitional rules vest exclusive jurisdiction" }, { "docid": "23034356", "title": "", "text": "v. Plasencia, 459 U.S. 21, 25, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). A deportation hearing was the “usual means of proceeding against an alien already physically in the United States,” while an exclusion hearing was the “usual means of proceeding against an alien outside the United States seeking admission.” Id. Because Hose had not yet cleared customs when she was detained, she was placed in exclusion proceedings. Under pre-IIRIRA law, the appropriate avenue for judicial review of a final order of exclusion was for the alien to file a petition for a writ of habeas corpus in the district court. See 8 U.S.C. § 1105a(b) (repealed by IIRIRA); Mosa v. Rogers, 89 F.3d 601, 603 (9th Cir.1996) (“An alien’s sole means for obtaining judicial review of a final order of exclusion is a petition for a writ of habeas corpus.”). By contrast, under pre-IIRIRA law, the exclusive means of obtaining judicial review of a final order of deportation was by filing a petition for review in the court of appeals. See 8 U.S.C. § 1105a(a); Duldulao v. INS, 90 F.3d 396, 397-98 (9th Cir.1996). IIRIRA unified judicial review procedures applicable to final orders of deportation and exclusion. IIRIRA repealed 8 U.S.C. § 1105a(b), which provided for review of final exclusion orders by writs of habeas corpus filed in the district courts. See IIRIRA § 306(b). In its stead, IIRI-RA’s transitional rules vested jurisdiction in the courts of appeals for review of final orders of deportation and exclusion. See IIRIRA § 309(c)(4)(A). Pre-IIRIRA law applies to cases in which a final deportation or exclusion order was filed on or before October 30, 1996. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). IIRIRA’s transitional rules apply to cases in which a final deportation or exclusion order was filed after October 30, 1996, and which were pending before April 1, 1997. See id. Finally, “IIRIRA’s permanent provisions pertain to removal proceedings initiated by the INS on or after April 1, 1997.” Id. Because Hose’s final order of exclusion was issued on April 25, 1997, and she was in exclusion proceedings" }, { "docid": "23034362", "title": "", "text": "as of right under the immigrations laws ... or if he has departed from the United States after the issuance of the order. 8 U.S.C. § 1105a(c) (emphasis supplied). Thus, because Hose departed the United States after issuance of the panel’s decision, we would lack jurisdiction under the transitional rules to entertain her petition for review. See id.; see also Thorsteinsson v. INS, 724 F.2d 1365, 1367 (9th Cir.1984) (interpreting the jurisdictional limits of 8 U.S.C. § 1105a(c)). Because Hose’s petition for review would not be subject to judicial review upon transfer, transfer pursuant to 28 U.S.C. § 1631 would be inappropriate. IV In summary, the panel opinion’s jurisdictional statements are untenable after the Supreme Court’s decision in American-Arab. Nonetheless, Hose is not entitled to relief. If Hose’s petition is construed as a petition for review, the district court’s dismissal of Hose’s petition was proper because, under IIRIRA’s transitional rules, exclusive jurisdiction over petitions for review of exclusion orders is vested in the federal courts of appeals. If Hose’s petition is construed as one seeking only a stay of deportation pending other administrative and judicial review, it is moot because she has been deported. We deny Hose’s request for transfer pursuant to 28 U.S.C. § 1631, because a petition for review filed by an alien wbo has been deported is not subject to judicial review under the transitional rules. We decline to reach any other question posed by the parties, or to opine as to whether Hose has any other available remedies. . IIRIRA’s permanent rules merge deportation and exclusion proceedings into a broader category entitled \"removal proceedings.” See IIRIRA § 304; United States v. Pantin, 155 F.3d 91, 92 (2d Cir.1998), cert. denied, - U.S. -, 119 S.Ct. 835, 142 L.Ed.2d 691 (1999). . The government also urges us to hold that the district court lacked jurisdiction on a different basis, namely, the government’s new construction of 8 U.S.C. § 1252(g) (following the Supreme Court’s decision in American-Arab) that courts lack jurisdiction to grant a deportation stay because it relates to the Attorney General’s discretion to \"execute removal orders.\"" }, { "docid": "22630709", "title": "", "text": "for further proceedings. The court stated that the BIA’s refusal to reopen had not been considered as a part of its order. The government timely appealed. II We first consider whether the district court had jurisdiction to consider Lara’s § 2241 petition. We review the district court’s determination of its jurisdiction de novo. See Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 302 (5th Cir.1999). As Lara was the party seeking to invoke federal jurisdiction, he bears the burden of demonstrating that jurisdiction was proper. See Stockman v. Federal Election Comm’n., 138 F.3d 144, 151 (5th Cir.1998). The Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) took effect in 1996. See IIRIRA, Pub.L. No. 104-208, 110 Stat. 3009-546 (1996). It is clear, and the parties agree, that Lara’s case is governed by the IIRIRA transitional rules. See IIRIRA § 309(a), (c)(1), (c)(4). § 106(c) of the INA states: “[a]n order of deportation ... shall not be reviewed by any court if the alien ... has departed from the United States after issuance of the order.” See 8 U.S.C. § 1105a(c) (1994) (repealed 1996). The IIRIRA repealed § 106 of the INA. See Sofinet v. INS, 188 F.3d 703, 708 (7th Cir.1999). However, the transitional rules incorporate § 106(c), 8 U.S.C. § 1105a(c). See Sofinet, 188 F.3d at 708 (“Because the transitional rules apply to Sofinet, § 1105a(c) still applies to him.”); Hose v. INS, 180 F.3d 992, 996 (9th Cir.1999) (en banc) (“The transitional rules prevent this court from reviewing exclusion orders when the petitioner has departed the country. The transitional rules . incorporate 8 U.S.C. § 1105a(c)....”). We have previously relied on § 1105a(c) to bar collateral attacks on prior deportation orders after their execution. In Cipriano, petitioner was deported in 1975, based on various criminal offenses. See Cipriano, 24 F.3d at 763. After deportation to Italy, he reentered without inspection. See id. The INS subsequently charged Cipriano with deportability under INA § 241(a)(2) [now § 241(a)(1)(B) ] for entry without inspection and denied discretionary relief. See id. at 764. While the 1975 deportation barred Cipriano’s claim for discretionary relief, Cipriano" } ]

[ { "docid": "624760", "title": "", "text": "of federal law that bail after conviction and pending appeal is a remedy normally available to a prisoner. See Hudson v. Parker, 156 U.S. 277, 285, 15 S.Ct. 450, 39 L.Ed. 424. The existence of power to grant bail .is, indeed, essential for the protection of the right to appeal. Otherwise a short sentence might be served before the appellate court could set aside the judgment of conviction for infirmities in the trial. An effective right to appeal would then be lost. The matter has best been summarized by Mr. Justice Butler sitting as Circuit Justice for the Seventh Circuit in United States v. Motlow, 10 F.2d 657, 662. He wrote, “Abhorrence, however great, of persistent and menacing crime will not excuse transgression in the courts of the legal rights of the worst offenders. The granting or withholding of bail is not - a matter of mere grace or favor. If these writs of error were taken merely for delay, bail should be refused; but, if taken in good faith, on grounds not frivolous but fairly debatable, in view of the decisions of the Supreme 'Court, then petitioners should be admitted to bail.” That test has been incorporated in Rule 46(a) (2) of the Federal Rules of Criminal Procedure, set out above. The question is whether “the case involves a substantial question which should be determined by the appellate court.” The question may be “substantial” even though the judge or justice hearing the application for bail would affirm on the merits of the appeal. The question may be new and novel. It may present unique facts not plainly covered by the controlling precedents. It may involve important questions concerning the scope and meaning of decisions of the Supreme Court. The application of well-settled principles to the facts of the instant case may raise issues that are. fairly debatable. An appellant, though guilty beyond question, may have been denied the kind of a trial that even a traitor to our country is entitled to under the Constitution and laws. Those are situations where bail pending appeal should be granted. This appeal" } ]

[ { "docid": "22260189", "title": "", "text": "amendment “greatly liberalized” the earlier' rule. Ward v. United States, 76 S.Ct. 1063, 1064-65, 1 L.Ed.2d 25 (1956) (Frankfurter, Circuit Justice). Subsequently the new rule was incorporated in the Bail Reform Act of 1966, 18 U.S.C. § 3146 et seq. (1982) (repealed October 23,1984). In 1984 the more liberal standard was in turn abandoned. In its place Congress once again adopted a “substantial question” test. By reenacting the “substantial question” standard, the Bail Reform Act of 1984 reintroduced the stricter standard that had been applicable prior to the adoption, in 1956, of the “frivolous” test. Some of the cases discussed above directly examine the stricter “substantial question” requirement that has now once again been adopted. Others examine that phrase in other contexts. All reach similar conclusions as to its meaning. We do not think it necessary, in order to effectuate Congress’ purpose, to ignore the cases that have previously defined the term “substantial question.” It was after the term had been consistently construed in the manner we have described that Congress decided to incorporate it in the 1984 Act. Moreover, in that Act, in addition to readopting the stricter “substantial question” standard, Congress made other significant changes, designed to toughen the law with respect to bail pending appeal. Most important were the following: (a) as discussed earlier, Congress added a new requirement that the question be of a type that, .if resolved in the defendant’s favor, would be likely to result in reversal or a new trial; (b) Congress shifted the burden of proof from the government to the defendant. Each of the changes contained in the Bail Reform Act of 1984 makes it considerably more difficult for a defendant to be released on bail pending appeal. Viewing the changes as a whole, we have no doubt that Congress succeeded in accomplishing its basic purpose of tightening the standards for bail pending appeal. Accordingly, we see no need to define “substantial question” in a manner contrary to that in which it has always previously been defined, even assuming we would have the authority to do so. We conclude that a" }, { "docid": "23652391", "title": "", "text": "large. The Government made a blanket assertion of all three of the above grounds in its brief and in oral argument. Because of the importance and recurrent nature of this general question, we think a statement of our views would be useful. Before 1956, Rule 46 (a) (2) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., permitted bail only if the case involved a “substantial question” for the appellate court, and the burden of showing this was on the defendant. In that year, the Rule was amended so that now bail may be allowed pending appeal or petition for certiorari unless the grounds are “frivolous or taken for delay.” It has been held that the new rule effected a considerable change, liberalizing the granting of bail and putting the burden of proof on the Government where it opposes applications for bail. Under both the old rule and the new, the legal merit of the question presented to the appellate court is the primary consideration in determining -whether bail should be granted. In fact, in many of the reported opinions, the only question discussed is whether the appeal is “insubstantial” or “frivolous.” Turning to the case before us, we cannot say that the appeal is frivolous or taken for delay. One of the defendant’s allegations of error pertains to the trial court’s holding inadmissible the opinion testimony of an expert witness, a psychiatrist, to the effect that the defendant, at the time he made the false statements to the Savings and Loan Association, did not “knowingly” do so. The defendant asserts that the testimony was offered to show that he lacked the requisite specific intent, an essential element of the crime. In characterizing this assertion of error as frivolous, the Government takes the position that the proferred expert testimony went to the ultimate issue, and was therefore inadmissible as an invasion of the province of the jury. Without expressing any opinion om¡ the merits of the respective contentions; we may at least say that the question is reasonably debatable. Courts have held that where a defendant is charged with, a" }, { "docid": "23302853", "title": "", "text": "of pleading, practice, and procedure in criminal courts of the United States. Rule 46 pertains to bail. As originally enacted, Rule 46 (a) (2) of the Federal Rules of Criminal Procedure provided in pertinent part: “Bail may be allowed pending appeal or certiorari only if it appears that' the ease involves a substantial question which should be determined by the appellate court.” This was substantially a restatement of the previously promulgated Rule VI of the Supreme Court Rules of Practice and Procedure in Criminal Cases. . Rule 46(a) (2)- was. amended in 1956 and the present rule reads: “Bail may be allowed pending appeal or' certiorari ■ unless it appears that the appeal is frivolous or taken for delay.” .. Justice Frankfurter in speaking of the change in the rule observed: “Obviously, as the Government recognizes, the amendment has greatly liberalized the basis for admission to bail in the federal courts pending an appeal from conviction. “. . .1 think the Government is right in saying that the granting of bail is called for more readily under the new standard than it was under the old concept of ‘substantial question.’ It is also right in indicating that the new Rule effectuates a shift from putting the burden on the convicted defendant to establish eligibil ity for bail, to requiring the Government to persuade the trial judge that the minimum standards for allowing bail have not been met.” [Ward v United States, 1 L ed 2d 25, 76 S Ct 1063 (1956); Annotated at 1 L ed 2d 1564, Right to bail before conviction or upon review thereof, under Federal Criminal Procedure Rule 46(a) (1) and (2).] It is apparent, therefore, that if a military prisoner is entitled to bail, the burden is on the Government to show why it should not be granted. In an earlier annotation entitled “Bail pending appeal from conviction,” 45 ALR 458, covering Federal eases, the majority of the States, as well as England and Canada, it is stated that: “Under the common law bail pending an appeal from a conviction was not a matter of" }, { "docid": "22260188", "title": "", "text": "In Miller the Third Circuit said that “substantial question” is one that is “fairly doubtful.” 753 F.2d at 23. In our view, that definition is synonymous with “fairly debatable.” We recognize that all the cases we have discussed, other than Miller and Giancola, involve earlier rules or statutes or arose in different contexts. However, a review of the history of legislative enactments that preceded the adoption of the current statute and a consideration of that statute as a whole persuade us that giving “substantial question” its well-established, customary meaning is fully consistent not only with precedent and logic but with the overall statutory scheme as well. Prior to 1956, Rule VI of the Rules of Criminal Appeal, 292 U.S. 663-64 (1934), allowed for bail only if the appeal presented a “substantial question.” The “substantial question” standard was abandoned when the Federal Rules were amended in 1956, see Amendment to Fed.R.Crim.P. 46(a)(2), 350 U.S. 1021 (1956). The new standard allowed for bail as long as an appeal presented a question that was not “frivolous.” The 1956 amendment “greatly liberalized” the earlier' rule. Ward v. United States, 76 S.Ct. 1063, 1064-65, 1 L.Ed.2d 25 (1956) (Frankfurter, Circuit Justice). Subsequently the new rule was incorporated in the Bail Reform Act of 1966, 18 U.S.C. § 3146 et seq. (1982) (repealed October 23,1984). In 1984 the more liberal standard was in turn abandoned. In its place Congress once again adopted a “substantial question” test. By reenacting the “substantial question” standard, the Bail Reform Act of 1984 reintroduced the stricter standard that had been applicable prior to the adoption, in 1956, of the “frivolous” test. Some of the cases discussed above directly examine the stricter “substantial question” requirement that has now once again been adopted. Others examine that phrase in other contexts. All reach similar conclusions as to its meaning. We do not think it necessary, in order to effectuate Congress’ purpose, to ignore the cases that have previously defined the term “substantial question.” It was after the term had been consistently construed in the manner we have described that Congress decided to incorporate it" }, { "docid": "13571825", "title": "", "text": "am of the opinion that, irrespective of the action of the Court of Appeals in refusing to stay the mandate, or the filing of the petition for certiorari, or the denial of bail by the Circuit Justice, this court was without power to grant the adjournment. United States v. Ellenbogen, 390 F.2d 537, 541 n. 11 (2d Cir.), cert. denied, 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1968); 8A Moore’s Federal Practice, j[46.10, at 46-59; 3 Wright, Federal Practice and Procedure, § 768, at 273. There is no distinction between staying the issuance of the mandate and granting bail insofar as the consequences are concerned. And contrary to defendant’s contention, neither is there a distinction in adjourning the date of surrender. All three, in effect, allow a defendant his freedom pending some judicial determination. The release from custody pending an application for certiorari is solely within the power of the Court of Appeals or a judge thereof, or the Supreme Court or a Justice thereof. Fed.R.Crim.P. 46(a) (2). Defendant urges that since his petition for certiorari was filed after the action by the Court of Appeals and the Circuit Justice, this court should review that petition. He contends that the petition indicates a substantial ground for granting certiorari which should be sufficient to sustain the adjournment of the surrender date. With this is coupled a plea that defendant has exhibited throughout the history of these proceedings that he is an excellent bail risk. The subsequent filing of the petition does not change the requirements of Rule 46(a) (2). This is obvious since the judicial officers there named are best qualified in a particular case to evaluate the substance of a defendant’s arguments. Furthermore, the Bail Reform Act (18 U.S.C. § 3148) provides that bail may be denied “if it appears that an appeal is frivolous or taken for delay.” From the prior determinations by the Court of Appeals and the Circuit Justice, it appears that this finding has been made. Consequently, defendant shall appear for surrender on December 27,1971. So ordered." }, { "docid": "7645911", "title": "", "text": "the Federal Rules of Appellate Procedure and Rule 46(c) of the Federal Rules of Criminal Procedure eligibility for release on bond pending appeal is governed by the provisions of Title 18, United States Code, Section 3148. Both rules also provide as follows: “The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant.” Under Section 3148 of Title 18, United States Code, a person who has been convicted and has filed an appeal is to be treated in accordance with the provisions of Section 3146 of Title 18, United States Code, which provides for release in noncapital cases prior to trial. Section 3148 provides that such a person shall be so considered “unless the Court . . . has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community.” That statute further provides as follows: “If such a risk of flight or danger is believed to exist, or if it appears that an appeal is frivolous or taken for de lay, the person may be ordered detained.” It is clear that under these provisions there is no right to bail after conviction. The question of whether a convicted defendant is to be released on bail pending appeal rests in the sound discretion of the trial Court. United States v. Baca, 444 F.2d 1292 (10th Cir. 1971), cert. denied 404 U.S. 979, 92 S.Ct. 347, 30 L.Ed.2d 294 (1971). It is clear that the standards for post-trial release are much stricter than the standards relating to pre-trial release. Particularly, in considering release pending‘appeal, the Court may consider the individual’s potential for danger to the community. And in this regard, under the rules, the burden is on the defendant to prove he is not a danger to the community. It has been held that engaging in narcotics traffic is a danger to the community within the meaning of Section 3148. United States v. Erwing, 280" }, { "docid": "1018565", "title": "", "text": "POSNER, Circuit Judge. Emerson Molt has asked us to reconsider our refusal to grant him bail under Fed.R. App.P. 9(b) pending his appeal to this court from his conviction and eight-year prison sentence for drug crimes (the district court having refused to grant him bail pending appeal). Although we adhere to our decision, we have thought it best to publish our reasons for doing so because the main issue he raises — the constitutionality of applying the standard for bail in the recently enacted federal criminal code to persons convicted of crimes committed before October 12, 1984, when the new standard took effect (United States v. Angiulo, 755 F.2d 969 (1st Cir.1985); see United States v. Gavrilovic, 551 F.2d 1099, 1103 (8th Cir. 1977)) — is bound to recur. Until October 12, the rule was that bail pending appeal could be denied (in the absence of any danger of flight or to public safety) only “if it appears that an appeal is frivolous or taken for delay.” 18 U.S.C. § 3148 (repealed). Under the new code, bail can be granted only if the court finds “that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.” Bail Reform Act of 1984, § 203, 98 Stat. 1981-82, to be codified at 18 U.S.C. § 3143(b)(2). This is a more stringent standard, since an appeal could be at once nonfrivolous yet insubstantial in the sense of quite unlikely to succeed; and the parties are agreed that Molt’s appeal is not frivolous, so that if the old standard rather than the new were applicable he clearly would be entitled to bail. Before we take up the constitutional issue we shall consider Molt’s other, non-constitutional ground for reconsideration, which is that the district court misapplied the new standard. At Molt’s trial the judge had allowed narcotics users to testify to conversations between Molt and his alleged coconspirators without making a determination that those coconspirators were unavailable to be cross-examined. Molt argues that this denied his" }, { "docid": "16077626", "title": "", "text": "counsel that in law they are valid and well taken; and parties properly seeking review are not to be burdened by avoidable expense, loss, sacrifice or punishment.” From 1934 to 1956, Criminal Appeals Rule 6 and then Rule 46(a)(2) (1946) of the Federal Rules of Criminal Procedure provided for bail pending appeal only if the appeal involved “a substantial question which should be determined by the appellate court.” With the adoption of Criminal Appeals Rule 6, the standard for granting bail pending appeal became more restrictive. The appeal had to involve a substantial question, not merely one which was not frivolous, and the burden of proof was transferred from the government to the defendant to make such a showing. Johnson v. United States, 218 F.2d 578 (9th Cir.1954). Once a substantial question was shown to exist, bail was a matter of discretion. Williamson v United States, 184 F.2d 280, 281 n. 4 (2d Cir.1950). The Bail Reform Act of 1966 left this practice intact, although it made bail more accessible prior to conviction. With the proliferation of crime, and the increase in criminal appeals, consequent upon hypertechnical evidentiary rules, producing reversal of convictions without regard to guilt or innocence, and the availability of a free attorney to take an appeal, some social discontent arose concerning the perceived ineffectual administration of the criminal law. It came to be understood that many appeals were taken solely for purposes of delay, and persons on bail awaiting resolution of their appeals were committing additional crimes, engaging in flight, and evading punishment. Thus, the Bail Reform Act of 1984 was enacted, because Congress wished to reverse the presumption in favor of bail that had been established under the prior statute, the Bail Reform Act of 1966. Under that Act, even after conviction the defendant was entitled to bail for a non-frivolous appeal “unless the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or any other community.” § 3(a), 80 Stat. 214," }, { "docid": "23652390", "title": "", "text": "SOBELOFF, Chief Judge. This is the application of the defendant, Charles G. Rhodes, to be admitted to bail during the pendency of his appeal in this court. On January 4, 1960, the applicant was convicted in the District Court for the Southern District of West Virginia of knowingly making false statements to a Federal Savings and Loan Association to obtain a $20,000 loan, and he was sentenced to twenty-two months imprisonment and a fine of $3,000. The District Judge, in overruling the defendant’s motion for bail pending appeal, filed no opinion or memorandum, made no findings and gave no reasons that have been called to our attention. According to the brief of the Government here, in opposition to bail, no additional evidence was heard on this question. We do not know if the Judge denied bail in the belief that the appeal was frivolous or for delay, or because there was in his opinion danger that the defendant would abscond, or because he thought the defendant would commit further violations if allowed to remain at large. The Government made a blanket assertion of all three of the above grounds in its brief and in oral argument. Because of the importance and recurrent nature of this general question, we think a statement of our views would be useful. Before 1956, Rule 46 (a) (2) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., permitted bail only if the case involved a “substantial question” for the appellate court, and the burden of showing this was on the defendant. In that year, the Rule was amended so that now bail may be allowed pending appeal or petition for certiorari unless the grounds are “frivolous or taken for delay.” It has been held that the new rule effected a considerable change, liberalizing the granting of bail and putting the burden of proof on the Government where it opposes applications for bail. Under both the old rule and the new, the legal merit of the question presented to the appellate court is the primary consideration in determining -whether bail should be granted. In fact, in" }, { "docid": "22245572", "title": "", "text": "The Act fails to specify the factors to be considered in determining whether the convicted appellant poses a danger to the community. . United States v. Jackson, 135 U.S.App.D.C. 207, 208, 417 F.2d 1154, 1155 (1969) (per curiam); see United States v. Harrison, 131 U.S.App.D.C. 390, 392, 405 F.2d 355, 357 (1968) (per curiam), cert. denied 396 U.S. 974, 90 S.Ct. 465, 24 L.Ed.2d 442 (1969). . Chambers v. Mississippi, 405 U.S. 1205, 1206, 92 S.Ct. 754, 30 L.Ed.2d 773 (1972) (Powell, Circuit Justice); Sellers v. United States, 89 S.Ct. 36, 39, 21 L.Ed.2d 64 (1968) (Black, Circuit Justice); United States v. Stanley, 449 F.Supp. 467, 472 (N.D.Cal.1978); United States v. Miranda, 442 F.Supp. 786, 792 (S.D.Fla.1977). . See, e. g. Ward v. United States, 76 S.Ct. 1063, 1065, 1 L.Ed.2d 25 (1956) (Frankfurter, Circuit Justice); Rhodes v. United States, 275 F.2d 78, 80 (4th Cir. 1960); United States v. Piper, 227 F.Supp. 735, 741 (N.D.Tex.1964). . Leigh v. United States, 82 S.Ct. 994, 996, 8 L.Ed.2d 269 (1962) (Warren, Circuit Justice); Herzog v. United States, 75 S.Ct. 349, 351, 99 L.Ed. 1299 (1955) (Douglas, Circuit Justice), cert. denied, 352 U.S. 844, 77 S.Ct. 54, 1 L.Ed.2d 59 (1956). See generally, Note, Bail Pending Appeal in Federal Court: The Need for a Two-Tiered Approach, 57 Tex.L.Rev. 275, 278-79 (1979) (hereinafter cited as Bail Pending Appeal in Federal Court). . 18 U.S.C. § 3148 (1976). . See United States v. Fields, 466 F.2d 119, 121 (2d Cir. 1972) (Bail Reform Act incorporates prescription in favor of bail after conviction); Leary v. United States, 431 F.2d 85, 89 (5th Cir. 1970) (Government has burden); Government of Virgin Islands v. Callwood, 296 F.Supp. 943, 943 (D.V.I.1969) (Under Bail Reform Act discretion should normally be exercised in favor of granting bail). . Fed.R.App.P. 9(c); accord, Fed.R.Crim.P. 46(c) (Release from Custody Pending Sentence and Notice of Appeal). 18 U.S.C. § 3772 (1976) authorizes the Supreme Court of the United States to prescribe “rules of practice and procedure with respect to any or all proceedings after verdict.” and provides that once such rules become effective, “all" }, { "docid": "12377587", "title": "", "text": "pending appeal or certiorari unless it appears that the appeal is frivolous or taken for delay.” Rule 33(f) of the General Rules of this court elaborates on this criterion as follows: “In addition to the question whether the appeal is frivolous, or taken for delay, the following factors, among others, may be considered by the court in determining whether bail should be allowed: (1) [w]hether the safety of the community would be jeopardized; and (2) [w]hether there is likelihood of appellant fleeing or going into hiding. * * *” Rule 46(c), Fed.R.Crim.P., sets out the criteria for setting the amount of bail as follows: “If the defendant is admitted to bail, the amount thereof shall be such as in the judgment of the commissioner or court or judge or justice will insure the presence of the defendant, having regard to the nature and circumstances of the offense charged, the weight of the evidence against him, the financial ability of the defendant to give bail and the character of the defendant.” If the appeal is not frivolous or taken for delay, “bail should ordinarily be granted * * *. It is to be denied only in cases in which, from substantial evidence, it seems clear that the right to bail may be abused or the community may be threatened by the applicant’s release. [Citing cases.]” Leigh v. United States, 82A S.Ct. 994, 8 L.Ed.2d 269 (1962), opinion of Chief Justice Warren sitting as Circuit Justice for the District of Columbia Circuit. Rule 46(a) (2) places a substantial burden on the Government to persuade the court that bail should not be allowed. See Ward v. United States, 76 S.Ct. 1063, 1 L.Ed.2d 25 (1956), opinion of Mr. Justice Frankfurter, as Circuit Justice. Clearly the Government’s conclusory allegations here — none of which bear any relation to the criteria for granting bail set out in Rule 33(f) — do not discharge its burden of disproving appellant’s claims that his release would not jeopardize the safety of the community and that he would not flee. I must conclude therefore that appellant is entitled to" }, { "docid": "9941513", "title": "", "text": "Me. Justice Douglas, Circuit Justice. This is an application for bail pending appeal to the Court of Appeals for the Ninth Circuit. Both the District Court and the Court of Appeals have previously denied similar applications, and their action is entitled to great deference. Reynolds v. United States, 80 S. Ct. 30, 4 L. Ed. 2d 46 (1959). Nevertheless, “where the reasons for the action below clearly appear, a Circuit Justice has a non-delegable responsibility to make an independent determination of the merits of the application.” Id., at 32, 4 L. Ed. 2d, at 48. Fed. Rule Crim. Proc. 46 (a) (2); 18 U. S. C. §§ 3146, 3148. Accord, Sellers v. United States, 89 S. Ct. 36, 21 L. Ed. 2d 64 (1968). While there is no automatic right to bail after convictions, Bowman v. United States, 85 S. Ct. 232, 13 L. Ed. 2d 171 (1964), “[t]he Command of the Eighth Amendment that 'Excessive bail shall not be required at the very least obligates judges passing upon the right to bail to deny such relief only for the strongest of reasons.” Sellers, supra, at 38, 21 L. Ed. 2d, at 66. The Bail Reform Act of 1966, 18 U. S. C. §§ 3146, 3148, further limits the discretion of a court or judge to deny bail, as it provides that a person shall be entitled to bail pending appeal, if that appeal is not frivolous or taken for delay, or “unless the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community.” § 3148. Applying these principles, my examination of the papers submitted by applicant and by the Solicitor General in opposition persuade me that the Government has not met its burden of showing that bail should be denied. The primary ground upon which the Solicitor General opposes bail is that “[t]here are no substantial questions raised” by the appeal. It is true that the questions raised relate primarily to evidentiary matters." }, { "docid": "14205049", "title": "", "text": "KAUFMAN, Circuit Judge. The defendant, in a trial before District Judge MacMahon, was convicted of participation in a conspiracy to violate the federal narcotic laws, 21 U.S.C.A. §§ 173, 174, and sentenced to twenty years in prison and a fine of $20,000. Upon handing down his sentence, Judge MacMahon stated to the defendant: “[T]he evidence on the trial shows that you were the leader of this vicious criminal enterprise. * * * You have a criminal record which proclaims your total contempt for law, order and civilized society * * You are a threat to the public safety * * *” (Record, p. 9254). The defendant is taking an appeal of his conviction to this Court, and has moved for an order admitting him to bail pending his appeal. A similar motion was made in the District Court, and denied because the issues on appeal were deemed frivolous and because of anticipated danger to the public and to participants in the trial. “Bail may be allowed pending appeal or certiorari unless it appears that the appeal is frivolous or taken for delay.” Fed.R.Crim.P. rule 46(a) (2), 18 U.S.C.A. I need not pass on the question whether the issues presented on the instant appeal are frivolous, for there is a more serious reason for denying the appellant’s motion. It has been held by Mr. Justice Frankfurter, sitting as ad hoc Circuit Justice for the Second Circuit, and interpreting Rule 46(a) (2), that one requirement for bail pending appeal is that the Court have “confidence that a defendant will respond to the demands of justice.” Ward v. United States, 76 S.Ct. 1063, 1066, 1 L.Ed.2d 25, 28 (1956). As the Court of Appeals for the Ninth Circuit has just recently held, “[T]he granting of bail remains a matter of discretion. * * * [Tjhere is a substantial likelihood that each of the defendants would become a fugitive from justice if admitted to bail and that no amount of bail which the defendants could produce would provide an effective deterrent.” Carbo v. United States, 302 F.2d 456, 457 (9th Cir. 1962). The history" }, { "docid": "22563489", "title": "", "text": "of the sentence herein has been completely served — thus rendering the application for release moot. United States v. Sitton, 5 M.J. 394 (C.M.A.1978) (Perry, J., concurring). . Part I concerned the propriety of addressing ourselves to this issue at that time in a petition for extraordinary relief. For the reasons stated therein, Corley v. Thurman, 3 M.J. 192, 193 (C.M.A.1977) (Perry, J. dissenting), I determined that a resolution of the legal question was proper and appropriate. However, the majority concluded otherwise, denying the petition “without prejudice to the right to raise the issues presented therein during the course of appeal pursuant to Articles 66 and 67, respectively, Uniform Code of Military Justice, 10 U.S.C. §§ 866-67.” Corley v. Thurman, 3 M.J. 192 (C.M.A.1977). A similar fate befell the appellant’s petition for a writ of habeas corpus, again over my dissent. Brownd v. Commander, 3 M.J. 256 (C.M.A.1977). . Bail Reform Act of 1966, 18 U.S.C. §§ 3141-3152. 18 U.S.C. § 3148 states that a person convicted in federal court of an offense whose case is pending appeal shall be treated in accordance with the provisions of section 3146 [pretrial release in non-capital cases] unless the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community. If such a risk of flight or danger is believed to exist, or if it appears that an appeal is frivolous or taken for delay, the person may be ordered detained. Id. [Collier v. United States, 19 U.S.C.M.A. 511, 515, 42 C.M.R. 113, 117 (1970)], quoting S.Rep.No.1601, 90th Cong. 2d Sess., U.S.Code & Admin.News 1968, pp. 4501, 4503. . A.B.A. Standards, Criminal Appeals § 2.5(b) (1970), requires: Release should not be granted unless the court finds that there is no substantial risk the appellant will not appear to answer the judgment following conclusion of the appellate proceedings and that the appellant is not likely to commit a serious crime, intimidate witnesses or otherwise interfere with the administration of" }, { "docid": "674150", "title": "", "text": "not a danger to the community is on the defendant under the Bail Reform Act. See, United States v. Quicksey, 371 F.Supp. 561 (D.C.W.Va.1974). Rule 9(c) of the Federal Rules of Appellate Procedure states that “the burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant.” Finally, the court notes that the standards guiding its determination of bail after conviction and pending appeal are more stringent than the standards applicable to the determination of bail before the trial when the defendant is presumed innocent. 18 U.S.C. § 3148. Third, the danger to the community must be of such dimensions that the only reasonable manner by which it can be averted is incarceration. If the court can tailor the conditions of defendant’s bond in such a manner that the danger can be checked, the court must do so and not order that the defendant be confined without bail. See Sellers v. United States, 89 S.Ct. 36, 21 L.Ed.2d 64 (1968). In sum, bail pending appeal is hardly a certainty. As Justice Douglas noted in Carbo v. United States, 82 S.Ct. 662, 666, 7 L.Ed.2d 769 (1962), a case in which bail was denied pending appeal: It would seem that while bail normally should be granted pending review where the appeal is not ‘frivolous’ nor ‘taken for delay’ there still is discretion to deny it. . If, for example the safety of the community would be jeopardized, it would be irresponsible judicial action to grant bail, (emphasis added). With these general concepts as background, this court next addresses the most critical issue in this bond determination, namely: whether substantial drug trafficking is itself a sufficient danger to the community to justify denying bond pending appeal to a defendant found guilty of being a dealer in drugs. The court believes that the question must be answered in the affirmative. This is a question of first impression in this Circuit. While other courts have treated this question before, none has established that this one element- — drug trafficking —" }, { "docid": "838696", "title": "", "text": "$2,500 cash deposit to be posted. Plaintiff-Appellee filed an Emergency Motion on January 24, 1975, seeking to have vacated that portion of the Court of Appeals’ Order which granted bail on appeal to Defendant-Appellant. On January 28, 1975, the Court of Appeals stayed its Order granting bail on appeal and allowed Defendant-Appellant five days to respond to the Government's Emergency Motion. On February 6, 1975, the Court of Appeals remanded the matter to the Trial Court “for the limited purpose of the entering of a written statement of reasons for the denial thereof as required by Fed.R.App.P. Rule 9(b).” The Bail Reform Act, 18 U.S.C. Section 3141 et seq., and Rule 9(a) of the Federal Rules of Appellate Procedure set forth the considerations which should guide the Court in determining whether a person should be released pending appeal and require that the Court state in writing the reasons for actions taken in the event the Court either refuses release pending appeal or imposes conditions of release. Release after conviction pending appeal, following Rule 9(c) of Fed.R.App.P., is covered by Section 3148 of Title 18 which provides in part: “A person ... (2) who has been convicted of an offense . and ... . has filed an appeal shall be treated in accordance with the provisions of Section 3146 unless the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community. If such a risk of flight or danger is believed to exist or if it appears that appeal is frivolous or taken for delay, the person may be detained. . . . ” Thus the Act provides three instances when release pending appeal may be denied: (1) When the appeal is frivolous or taken for the purpose of delay, (2) When appellant poses a danger to another person or to the community, or (3) When appellant may flee the jurisdiction. Weaver v. United States, 131 U.S.App.D.C. 388, 405 F.2d 353 (1968). In making these" }, { "docid": "12377588", "title": "", "text": "frivolous or taken for delay, “bail should ordinarily be granted * * *. It is to be denied only in cases in which, from substantial evidence, it seems clear that the right to bail may be abused or the community may be threatened by the applicant’s release. [Citing cases.]” Leigh v. United States, 82A S.Ct. 994, 8 L.Ed.2d 269 (1962), opinion of Chief Justice Warren sitting as Circuit Justice for the District of Columbia Circuit. Rule 46(a) (2) places a substantial burden on the Government to persuade the court that bail should not be allowed. See Ward v. United States, 76 S.Ct. 1063, 1 L.Ed.2d 25 (1956), opinion of Mr. Justice Frankfurter, as Circuit Justice. Clearly the Government’s conclusory allegations here — none of which bear any relation to the criteria for granting bail set out in Rule 33(f) — do not discharge its burden of disproving appellant’s claims that his release would not jeopardize the safety of the community and that he would not flee. I must conclude therefore that appellant is entitled to release on bail. My brethren apparently agree with this conclusion. But they set bail at $5,000, despite appellant’s uncontradict-ed allegation that he is unable to pay the premium on bail of more than $2,500. Thus release is barred because of appellant’s financial condition. Mr. Justice Douglas has reminded us that “It would be unconstitutional to fix excessive bail to assure that a defendant will not gain his freedom * * *. Yet in the case of an indigent defendant, the fixing of bail in even a modest amount may have the practical effect of denying him release.” Bandy v. United States, 81 S.Ct. 197, 5 L.Ed.2d 218 (1960). As I see it, the critical threshold determination in considering an application for bail pending appeal is whether appellant is eligible for release. If it is affirmatively shown that upon release appellant would be likely either to (a) harm the community or (b) fail to appear as required, he is ineligible and may not be released under any conditions or amount of bail. But absent such showing," }, { "docid": "23302852", "title": "", "text": "leaves the bailing of the prisoner pending appeal entirely within the discretion of the court which issued the writ. It is needless to say that there is no constitutional right to bail in any case, after conviction. After all that has been said and written on the subject, the only rule which can be deduced from the authorities is that bail should be granted or denied as best effects exact justice between the government and the defendant according to the character and urgencies of the instant case, determined in the light of the principles of the common law as affected by the enactments of Congress.” [Emphasis supplied.] See also the Annotations in 19 ALR 807 and 77 ALR 1235, “Constitutional right to bail pending appeal from conviction,” for additional authority, both State and Federal, in support of the proposition that the right to bail after conviction is not a matter of constitutional right. By authority of Congress, Act of June 29, 1940, 54 Stat 688, the Supreme Court was given specific authority .to prescribe rules of pleading, practice, and procedure in criminal courts of the United States. Rule 46 pertains to bail. As originally enacted, Rule 46 (a) (2) of the Federal Rules of Criminal Procedure provided in pertinent part: “Bail may be allowed pending appeal or certiorari only if it appears that' the ease involves a substantial question which should be determined by the appellate court.” This was substantially a restatement of the previously promulgated Rule VI of the Supreme Court Rules of Practice and Procedure in Criminal Cases. . Rule 46(a) (2)- was. amended in 1956 and the present rule reads: “Bail may be allowed pending appeal or' certiorari ■ unless it appears that the appeal is frivolous or taken for delay.” .. Justice Frankfurter in speaking of the change in the rule observed: “Obviously, as the Government recognizes, the amendment has greatly liberalized the basis for admission to bail in the federal courts pending an appeal from conviction. “. . .1 think the Government is right in saying that the granting of bail is called for more" }, { "docid": "1016554", "title": "", "text": "Giancola, 754 F.2d at 900 (emphasis added). The Eleventh Circuit then further examined the Act’s legislative history and concluded that Congress specifically intended to reverse the presumption in favor of bail pending appeal that existed under the predecessor statute, the Bail Reform Act of 1966. Under the prior Act, a convicted defendant was entitled to bail unless the court found that no one or more conditions of release would reasonably assure that the defendant would not flee or pose a danger to any other person or the community, or if it appeared that the appeal was frivolous or taken for the purpose of delay. Act of June 22, 1966, Pub.L. 89-465, § 3(a), 80 Stat. 215 (formerly codified at 18 U.S.C. § 3148). Pursuant to the former Act, the burden was on the government to show that the convicted defendant should be detained pending the outcome of his appeal. The 1984 Act was intended to reverse the presumption so that the conviction is presumed correct and the burden is on the convicted defendant to overcome that presumption. Id; see S.Rep. No. 225, 98th Cong., 1st Sess. 26 (1983), reprinted in 1984 U.S.Code Cong. & Ad.News 3209. The Giancola Court noted further: The Third Circuit’s interpretation effectuates this congressional intent since, under its interpretation, ‘a defendant seeking bail on appeal must show that his or her appeal has more merit than under the discarded “frivolous” test, but ... the court [still has] discretion to give bail in those cases, which will consequently be considerably reduced in number, where [a] defendant can meet the criteria.’ Miller, at 753 F.2d 23-24. Id. at 901. In regard to the Third Circuit’s suggestion that a “substantial question” is one that has not been decided by controlling precedent, the Giancola Court noted that the lack of controlling precedent may in some instances be indicative of only that the issue is so patently frivolous that it has not been found necessary for it to have been resolved. 754 F.2d at 901. The Eleventh Circuit would thus define a “substantial question” as “one of more substance than would" }, { "docid": "1016553", "title": "", "text": "new trial. Id. Finally, the Miller Court concluded that the Act established the following criteria which the defendant has the burden of proving if he seeks bail pending appeal: (1) the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released; (2) the appeal is not for the purpose of delay; (3) the appeal raises a substantial question of law or fact; and (4) if that substantial question is determined favorably to the defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed. 753 F.2d at 24. In United States v. Giancola, 754 F.2d 898, the Eleventh Circuit adopted the Miller interpretation in construing section 3143(b). The court stated: We think that the Third Circuit’s interpretation effectuates congressional intent. The legislative history indicates that while Congress did not intend for the 1984 Bail Act to eliminate bail pending appeal, it did intend to limit its availability. Giancola, 754 F.2d at 900 (emphasis added). The Eleventh Circuit then further examined the Act’s legislative history and concluded that Congress specifically intended to reverse the presumption in favor of bail pending appeal that existed under the predecessor statute, the Bail Reform Act of 1966. Under the prior Act, a convicted defendant was entitled to bail unless the court found that no one or more conditions of release would reasonably assure that the defendant would not flee or pose a danger to any other person or the community, or if it appeared that the appeal was frivolous or taken for the purpose of delay. Act of June 22, 1966, Pub.L. 89-465, § 3(a), 80 Stat. 215 (formerly codified at 18 U.S.C. § 3148). Pursuant to the former Act, the burden was on the government to show that the convicted defendant should be detained pending the outcome of his appeal. The 1984 Act was intended to reverse the presumption so that the conviction is presumed correct and the burden is on the convicted defendant to overcome" } ]

[ { "docid": "23684194", "title": "", "text": "to “introduce significantly probative evidence showing that the asserted reason is merely a pretext for discrimination.” Id. at 1228. Lewis did not present any statistical evidence of discrimination and, with the exclusion of the statements attributed to Carter and Dunning, he offered no direct evidence of discrimination with respect to APC’s decision to terminate his employment. Therefore, his only option for establishing a prima facie case was to present circumstantial evidence which satisfied the McDonnell Douglas test. Under that formula, the plaintiff must show that he or she (1) was a member of a protected group, (2) was qualified to do the job, (3) was discharged and (4) was replaced by someone outside the protected group. See Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1558 (11th Cir.1988). These elements are altered in eases involving RIFs and in those where a position is eliminated entirely. In such cases, the plaintiff must show (1) that he was in a protected age group and was adversely affected by an employment decision, (2) that he was qualified for the position held at the time of discharge and (3) evidence by which a fact finder could reasonably conclude that the employer intended to discriminate on the basis of age in reaching that decision. Jameson v. Arrow Co., 75 F.3d at 1532. The district court concluded that Lewis had failed to offer evidence sufficient to permit a reasonable fact finder to believe that APC intended to discriminate on the basis of age. Assuming, however, that Lewis had established a prima facie case, the court further concluded that he had not presented sufficient probative evidence that APC’s asserted reason for terminating him was a pretext for discrimination. On appeal, Lewis challenges the grant of summary judgment to APC because the court failed to view the evidence in the light most favorable to him. According to Lewis, there was sufficient evidence from which a reasonable juror could find that the entire RIF selection process was tainted with age-biased statements of various APC personnel. APC argues that there was insufficient admissible, relevant evidence from those clothed with adequate" } ]

[ { "docid": "22202951", "title": "", "text": "(4th Cir.2006), which recognized that a “plaintiff cannot seek to expose [an employer’s] rationale as pretex-tual by focusing on minor discrepancies that do not cast doubt on the explanation’s validity.” In Hux, a decision in which I joined, the plaintiff had sought to rebut the employer’s proffered reason of inferior job qualifications by comparing “herself to other employees on the basis of a single evaluative factor artificially severed from the employer’s focus on multiple factors in combination.” 451 F.3d at 315. The Hux ease, however, is materially different from the situation here. Holland is not seeking to demonstrate pretext by focusing on a single factor severed from a combination of other factors. Instead, he shows pretext by focusing on the fact that Washington Homes has provided two contradictory explanations for his termination, a proposition supported by our precedent in EEOC v. Sears Roebuck & Co., 243 F.3d 846 (4th Cir.2001), and Alvarado v. Board of Trustees, 928 F.2d 118 (4th Cir.1991). In the Sears case, the plaintiff had presented evidence that Sears had, over the course of the litigation, provided a variety of legitimate, nondiscriminatory explanations for its failure to hire him. 234 F.3d at 852-53. In evaluating whether this evidence was sufficient to demonstrate pretext, we concluded that it was, and the fact that Sears offered multiple, inconsistent justifications for its adverse employment action was, “in and of itself, probative of pretext.” Id. at 853. In Alvarado, we ruled that the plaintiff had presented sufficient evidence of pretext by showing that his employer first asserted he was being fired for lack of work, and then later alleged that he was fired for unsatisfactory job performance. 928 F.2d at 122-23; see also Reeves, 530 U.S. at 147, 120 S.Ct. 2097 (“Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.”); Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 647 (4th Cir.2002) (“The fact that an employer has offered inconsistent post-hoc explanations for its employment decisions is probative of pretext....”); Dominguez-Cruz" }, { "docid": "23623939", "title": "", "text": "discrepancy, always consider whether it pertains to a matter of importance or to an unimportant detail, and whether the discrepancy appears to result from honest disagreement, innocent error, or intentional falsehood. If a person is shown to have knowingly testified falsely concerning any important or material matter, you obviously have a right to distrust the testimony of such an individual concerning other matters. You may reject all of the testimony of that witness or give it such weight or credibility as you may think it deserves. . The jury charge stated: In order to prevail on this claim, [Conroy] must prove, by a preponderance of the evidence, that [Conroy’s] age was a substantial or motivating factor that prompted [Abraham Chevrolet] to terminate his employment. On the other hand, it is not necessary for [Conroy] to prove age. was the sole or exclusive reason for [Abraham Chevrolet's] decision. It is sufficient if [Conroy] proves age was a determining consideration that made a difference in [Abraham Chevrolet’s] decision. . Even before Reeves, two other circuits began to require jury instructions on pretext in employment discrimination cases. See Smith v. Borough of Wilkinsburg, 147 F.3d 272, 280 (3d Cir.1998); Cabrera v. Jakabovitz, 24 F.3d 372, 382 (2d Cir.1994). But see Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir.1994) (holding pre-Reeves that a pretext instruction, which describes only a permissible inference, is not necessary). . Even those circuits that have since Reevesre-quired a pretext instruction still subject a district court's failure to give this instruction to harmless error analysis. See Kanida, 363 F.3d at 578; Townsend, 294 F.3d at 1242. . We do note that district courts are giving variations of pretext instructions, which of course are proper under both Palmer and Reeves. See, e.g., Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189 (11th Cir. May 11, 2004) WILSON, Circuit Judge, concurring in result: I agree with the result reached in today’s opinion because I agree that Mr. Conroy was not prejudiced by the trial court’s refusal to give his requested pretext instruction. I write separately be cause, unlike the majority," }, { "docid": "7418672", "title": "", "text": "take over the Tampa market, Cleary responded that he did not know. Kenneth Geissler, Carter’s vice-president of field sales, wrote a memo regarding the positions which he anticipated would be affected by the territory realignments. The memo notes two criteria: (1) whether they are in a market with other Carter personnel and, (2) if so, how they were selected to be terminated verses others in their marketplace. As to Tidwell, the memo notes: “Tampa. Total volume $900,000. Only 7% of volume done in food. Five accounts make up 80% of business. Performance issue. Accounts would be covered by telemarketing or by J. Booth, Angel Martinez.” DX 7. Tidwell placed great importance on the EEOC “no cause” determination which noted that performance was a factor along with Carter’s other reasons for terminating Tid-well. Carter argues that the EEOC “no cause” determination did not reflect any inconsistent statements made by Carter but simply reflected a conclusion made by the EEOC after reviewing Tidwell’s performance evaluations. Although the identification of inconsistencies in an employer’s testimony can be evidence of pretext, see Bechtel Construction Co. v. Secr. of Labor, 50 F.3d 926 (11th Cir.1995), and Howard v. BP Oil Co., Inc., 32 F.3d 520, 525 (11th Cir.1994), the examples in this case do not present such a situation. At most, the jury could find that performance was an additional, but undisclosed, reason for the decision; the existence of a possible additional non-discriminatory basis for Tidwell’s termination does not, however, prove pretext. See Zaben, 129 F.3d at 1458-59 (“Although the company gave differing explanations for the selection of employees to be discharged, saying on the one hand that seniority played no role in the process and that only an employee’s performance was considered while, on the other hand, asserting that [the employee] was discharged because he had the least seniority, its reasons are not ... necessarily inconsistent.”). Conclusion Tidwell failed to produce evidence adequate to permit a reasonable factfinder to disbelieve Carter’s proffered nondiscriminatory explanation that it terminated Tidwell as a part of its reduction-in-force. Therefore, Carter was entitled to judgment as a matter of" }, { "docid": "17076022", "title": "", "text": "Carter, told him that other drillers were working 25 to 26 days per month, and they might start quitting if he was not fired. Carter also testified that Arnold said that Carter could not work 24-hour shifts like the others. These statements support the inference that Carter’s disability — or, put differently, Pathfinder’s desire to no longer provide reasonable accommodation for his disability — was a “determining factor” in his firing. Of course, Arnold also mentioned Carter’s altercation with the MWD during the same conversation. And this too may have been a motivating factor in Pathfinder’s decision to fire Carter. But in the context of the oil field, where employees complete strenuous tasks and work long shifts, the occasional spat between coworkers seems inevitable. The same is true for Carter’s use of an expletive in his conversation with Arnold. Moreover, even assuming that Pathfinder’s justification “would have provided a valid reason for terminating [him] under the applicable law, a reasonable jury could have nonetheless concluded that [he] was actually fired because of [his] disability.” See E.E.O.C. v. Heartway Corp., 466 F.3d 1156, 1167-68 (10th Cir.2006) (emphasis in original) (holding that a cook who had hepatitis C could potentially show that she was fired because of her disability, even assuming that her employer’s stated explanation for firing her — because she lied about her hepatitis on her job application — was a legitimate one). Viewing the record as a whole, we conclude that Carter has produced enough evidence to raise a genuine dispute of material fact as to whether the stated reason for his firing was pretextual. Pathfinder’s arguments to the contrary are unavailing. In addition to Pathfinder’s assertion that its proffered reason for firing Carter is its true reason, Pathfinder makes two arguments that deserve comment here. First, although it does not explicitly address the question of pretext in its brief, Pathfinder argues that Arnold’s statements to Carter are “not sufficient to raise an issue of fact for trial” because “[n]one of these statements, without inference, demonstrate that Arnold intended to terminate Carter because of an alleged disability.” (Emphasis in" }, { "docid": "3649135", "title": "", "text": "Co., 135 F.3d 1428, 1432 (11th Cir.1998). To satisfy the initial prima facie requirement of an age discrimination case based on circumstantial evidence, a plaintiff must establish: (1) that [he] was a member of the protected group of persons between the ages of forty and seventy; (2) that [he] was subject to adverse employment action; (3) that a substantially younger person filled the position that [he] sought ...; and (4) that [he] was qualified to do the job for which [he] was rejected. Damon, 196 F.3d at 1359. An “adverse employment action” is any ultimate employment decision, such as a discharge “or other conduct that alters the employee’s compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely affects his or her status as an employee.” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir.2000). The term “adverse employment action” thus includes not only discharges and reprimands, but also refusals to hire or promote. McCabe v. Sharrett, 12 F.3d 1558, 1563 (11th Cir.1994). Once the plaintiff establishes a prima facie case, a presumption of discrimination is created. Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1331 (11th Cir.1998); Tidwell v. Carter Prods., 135 F.3d 1422, 1426 (11th Cir.1998). The burden of production then shifts to the defendant to rebut the presumption of discrimination by producing at least one legitimate non-discriminatory reason for the adverse employment action. Sullivan v. Nat’l R.R. Passenger Corp., 170 F.3d 1056, 1059 (11th Cir.1999); Watkins v. Sverdrup Tech., Inc., 153 F.3d 1308, 1314 (11th Cir. 1998). The defendant does not have to persuade the court that it was actually motivated by those reasons. Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Instead, the defendant must only offer sufficient evidence to create a genuine issue of fact as to whether it discriminated against the plaintiff, and may do so by introducing evidence demonstrating the reasons for the action taken against the plaintiff. Id. at 255, 101 S.Ct. 1089; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S." }, { "docid": "22470331", "title": "", "text": "evidence of discrimination. Nonetheless, this statement does constitute circumstantial evidence of discrimination because it raises the inference that the Training Instructor interview panel members improperly based their decisions on race, rather than performance during the interview or other legitimate criteria. c. Promotion of Less-Qualified Candidate In support of his third pretext argument, Bass presented evidence that he was the most qualified applicant for the position and that Preston did not even meet the minimum qualifications for the position. At the time he applied for the Training Instructor position, Preston’s resume reflected that he had no experience as a Training Instructor and only two years of experience with the Fire and Rescue Division and had earned no credits toward his teaching certificate. It should have been obvious on the face of Preston’s application that he could not meet the mandatory criterion of obtaining a Florida teaching certification within 18 months of being promoted and that he lacked the requisite two years of Training Instructor experience. Hiring a less qualified person can support an inference of discriminatory motivation. See Alexander v. Fulton County, 207 F.3d 1303, 1340 (11th Cir.2000) (“both the Supreme Court and this court have observed that evidence showing an employer hired a less qualified applicant over the plaintiff may be probative of whether the employer’s proffered reason for not promoting plaintiff was pretextual”); Walker v. Mortham, 158 F.3d 1177, 1190 (11th Cir.1998) (“The fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself expose him to Title VII liability, although this may be probative of whether the employer’s reasons are pretexts for discrimination.” (internal marks, emphasis and citation omitted)). Here, the fact that the Division promoted Preston, an employee who was unqualified under the Division’s criteria, over Bass supports an inference of discrimination. This inference is further strengthened by Chief Moody’s statement that the County would continue to promote based on race and by other circumstantial evidence of discrimination. d. Deviation from Standard Procedure In support of his fourth pretext argument, Bass presented evidence indicating that the Fire and Rescue" }, { "docid": "15014171", "title": "", "text": "for the action, but that it was a determinative factor in the employer’s decision. See Anderson v. Savage Laboratories, Inc., 675 F.2d 1221, 1224 (11th Cir.1982) (citing Haring v. CPC International, Inc., 664 F.2d 1234, 1239-40 (5th Cir.1981)). However, it should be noted that federal courts “do not sit as a super-personnel department that reexamines an entity’s business decisions.” Chapman, 229 F.3d at 1030 (quoting Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991)). It is not appropriate for either the plaintiff or this court to “recast an employer’s proffered non-discriminatory reasons or substitute his business judgment for that of the employer.” Chapman, 229 F.3d at 1030. An “employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.” Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir.1984). In this case, Home Depot has proffered a legitimate reason for terminating plaintiff and plaintiff has not offered sufficient evidence that those reasons were pretextual. Plaintiff provided doctors notes that stated that he could not perform the salesperson’s position or the cashier’s position. With no acceptable positions available, Home Depot was forced to terminate plaintiff. The fact that one of Home Depot’s employee’s called plaintiff “boy” on one occasion does not provide sufficient evidence of pretext for a reasonable jury to find that Home Depot’s stated reasons for termination are merely a cover for discrimination. In fact, Home Depot’s quick response to plaintiffs complaint (transferring the employee who allegedly made the remark) is evidence that the decision makers had no racial bias. Therefore, defendant’s motion for summary judgment is due to be granted as to plaintiffs claims of racial discrimination. B. Disability Discrimination Under the Americans with Disability Act (“ADA”) 42 U.S.C. § 12112(a) an employer may not: discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, ad-' vancement, or discharge of employees, employee compensation, job training, and other" }, { "docid": "7418673", "title": "", "text": "of pretext, see Bechtel Construction Co. v. Secr. of Labor, 50 F.3d 926 (11th Cir.1995), and Howard v. BP Oil Co., Inc., 32 F.3d 520, 525 (11th Cir.1994), the examples in this case do not present such a situation. At most, the jury could find that performance was an additional, but undisclosed, reason for the decision; the existence of a possible additional non-discriminatory basis for Tidwell’s termination does not, however, prove pretext. See Zaben, 129 F.3d at 1458-59 (“Although the company gave differing explanations for the selection of employees to be discharged, saying on the one hand that seniority played no role in the process and that only an employee’s performance was considered while, on the other hand, asserting that [the employee] was discharged because he had the least seniority, its reasons are not ... necessarily inconsistent.”). Conclusion Tidwell failed to produce evidence adequate to permit a reasonable factfinder to disbelieve Carter’s proffered nondiscriminatory explanation that it terminated Tidwell as a part of its reduction-in-force. Therefore, Carter was entitled to judgment as a matter of law, and the district court should not have permitted the case to go to the jury. Accordingly, we REVERSE the entry of judgment in favor of Tidwell, and we REMAND the case for entry of judgment in favor of Carter. . Our task is not to revisit whether the plaintiff below successfully established a prima facie case of discrimination. \"When the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case, and responds to the plaintiff's proof by offering evidence of the reason for the plaintiff's rejection the factfinder must then decide whether the rejection was discriminatory\" and the question of whether the plaintiff properly made out a prima facie case is no longer relevant. See U.S. Postal Serv. v. Allans, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983) and Combs v. Plantation Patterns, 106 F.3d 1519, 1539 n. 11 (11th Cir.1997). . Furshman was also eliminated as part of Carter’s RIF." }, { "docid": "22336692", "title": "", "text": "for summary judgment that somewhat broadens Soto’s termination motives. In the affidavit, Soto claimed that he fired Kanafani after the yelling incident for his \"failure to improve his people skills,” \"[his] disregard of company rules, and his blatant unprofessionalism.” However, during his earlier deposition, Soto unequivocally stated that the sole reason for Kanafani’s termination was the yelling incident. Q. What was the basis for his [Kanafani's] termination? A. Using profanity on the sales floor where the customers were out in the open. Q. Was he terminated because of poor store conditions or was he terminated because of using vulgarity on the sales floor in front of customers? A. He was terminated for using vulgarity on the sales floor in front of customers. Q. No other reason? A. That was the reason for the termination. - Q. So again, the only reason he was terminated was for using vulgarity on the sales floor, correct? A. That is correct. Moreover, Dennis D’Angelo, Kanafani’s replacement, also testified that Soto told him that Kanafani was fired solely because of the yelling incident. Based on the repeated statements by Soto during his deposition that he fired Kanafani solely for the yelling incident (as well as D’Angelo’s corroboration of Soto’s termination motive), we find that a jury could infer that the \"inconsistencies” between Soto’s deposition and affidavit may be evidence of pretext. See Tidwell v. Carter Products, 135 F.3d 1422, 1427-28 (11th Cir.1998) (citing Bechtel Construction Co. v. Secretary of Labor, 50 F.3d 926 (11th Cir.1995); Howard v. BP Oil Co., Inc., 32 F.3d 520, 525 (11th Cir.1994)). Furthermore, Kanafani has produced sufficient evidence to create genuine issues of material fact as to his previous reprimands from Soto. Kanafani received three reprimands prior to the yelling incident for \"poor sales,” \"poor store conditions,” and an altercation with a beer vendor respectively. First, Kanafani testified that his store had become more profitable since he became store manager, creating a genuine issue of material fact as to the first reprimand. Second, while Kanafani received a reprimand for \"poor store conditions” during the busy Memorial Day Holiday Weekend, Fleming" }, { "docid": "17911120", "title": "", "text": "VII actions. Under the McDonnell Douglas framework, the burden of persuasion in Title VII actions always remains with the employee. Therefore, after the employee establishes a prima facie case of discriminatory animus, the employer only has the burden of producing “some legitimate, nondiscriminatory reason for the employee’s [termination].” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Then the burden shifts back to the employee to show that “the employer’s stated reason for terminating him was in fact a pretext.” Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 161 (1st Cir.1998). By contrast, under USERRA, the employee does not have the burden of demonstrating that the employer’s stated reason is a pretext. Instead, the employer must show, by a preponderance of the evidence, that the stated reason was not a pretext; that is, that “the action would have been taken in the absence of [the employee’s military] service.” 38 U.S.C. § 4311(c) (emphasis added). B. Analysis 1. Discriminatory Motivation The district judge held that Velázquez failed to produce sufficient evidence for a reasonable jury to believe that Velázquez’s military service was at least “a motivating factor” in Horizon’s decision to fire him. That is, the judge ruled that Velázquez was unable to show that Horizon at least partially based its decision to fire him on his military service. The district judge gave three principal reasons for this ruling. First, he discounted Velázquez’s testimony of anti-military remarks made by his co-workers, in part because he had not reported any harassment to Horizon. Second, he said that the evidence of the timing of his firing close to a return from training was of no probative value because he had returned from several other training sessions without being fired. Third, he noted that other Horizon employees in the military had not been demoted or fired. Although the district judge correctly cited the “motivating factor” test of Sheehan, we believe, after carefully reviewing the record, that the judge committed error on each of these three points. First, the court discounted Velázquez’s testimony of anti-military remarks because it" }, { "docid": "22107743", "title": "", "text": "black chief accused of taking bribes (treatment the Brothers Combined had been critical of); (5) Rioux’s aggressive response to the AFD’s delayed arrival at the May 2, 2004 fire was prompted by Rubin himself, who had told Rioux the Fire Investigation Unit needed to respond more quickly to fires; (6) an inference could be drawn that Austin was goaded into filing the grievance against Rioux by members of the Brothers Combined; (7) the differences in manner and degree of investigating the Rioux incident as compared to the incident involving proposed comparator Dunham; and (8) evidence showing Dunham was a discretionary officer subject to the same rules and supervisor&emdash;Rubin&emdash;as Rioux, who committed a similar offense to Rioux’s but who was treated differently with respect to the investigation of the incident and disciplinary action taken thereafter. The foregoing categories of evidence, combined with Rioux satisfying the Sturniolo and Hinson prima facie test for discriminatory demotion, lead us to conclude that Rioux satisfied his prima facie showing under McDonnell Douglas. 2. Legitimate Reason/Pretext Because the parties agree Appel-lees had a legitimate, nondiscriminatory reason for Rioux’s demotion following the OPS and Law Department investigations, the presumption of discrimination is eliminated, see Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 771 (11th Cir.2005), and we accordingly turn to the “focused” inqui ry concerning Rioux’s showing of pretext. See Silvera, 244 F.3d at 1258. “The inquiry into pretext centers upon the employer’s beliefs, and not the employee’s own perceptions of his performance.” Holifield, 115 F.3d at 1565 (citations omitted). The plaintiff must demonstrate weaknesses or implausibilities in the employer’s proffered legitimate reasons for its action sufficient for a reasonable factfinder to disbelieve the reasons. See Silvera, 244 F.3d at 1258 (quoting Combs, 106 F.3d at 1538). It is the plaintiffs burden not merely to raise a suspicion regarding an improper motive, but rather to demonstrate there is a genuine issue of material fact that the employer’s proffered reason for his demotion was pretextual. Chapman v. AI Transp., 229 F.3d 1012, 1024-25 (11th Cir.2000). The district court concluded that none of the other evidence submitted by" }, { "docid": "494530", "title": "", "text": "or speak in a discriminatory manner. III. We review the district court’s denial of defendant’s motion for judgment as a matter of law de novo, applying the same standards used by the district court. See Tidwell v. Carter Prods., 135 F.3d 1422, 1425 (11th Cir.1998). “Those standards require the consideration of ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986)). To establish a prima facie case of Title VII sex discrimination in a promotional decision, a plaintiff must prove: (1) that she is a member of a protected minority; (2) that she was qualified and applied for the promotion; (3) that she was rejected despite these qualifications; and (4) other equally or less qualified employees who are not members of the protected minority were promoted. See Taylor v. Runyon, 175 F.3d 861, 866 (11th Cir.1999). Once the plaintiff has established a prima facie case of discrimination, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. See id. If the employer meets this burden of production, the plaintiff must then establish that the defendant’s proffered reasons for the employee’s rejection were pretextual. See id. at 867. In a failure to promote case, a plaintiff cannot prove pretext by simply showing that she was better qualified than the individual who received the position that she wanted. A plaintiff must show not merely that the defendant’s employment decisions were mistaken but that they were in fact motivated -by sex. See Alexander v. Fulton County, 207 F.3d 1303, 1339 (11th Cir.2000). We have explained that “a plaintiff may not establish that an employer’s proffered reason is pre-textual merely by questioning the wisdom of the employer’s reasons, at least not where '... the reason is one that might motivate a reasonable employer.” Combs v. Plantation. Patterns, 106 F.3d 1519, 1543 (11th Cir.1997), cert. denied, sub nom., Combs v. Meadowcraft" }, { "docid": "22202952", "title": "", "text": "course of the litigation, provided a variety of legitimate, nondiscriminatory explanations for its failure to hire him. 234 F.3d at 852-53. In evaluating whether this evidence was sufficient to demonstrate pretext, we concluded that it was, and the fact that Sears offered multiple, inconsistent justifications for its adverse employment action was, “in and of itself, probative of pretext.” Id. at 853. In Alvarado, we ruled that the plaintiff had presented sufficient evidence of pretext by showing that his employer first asserted he was being fired for lack of work, and then later alleged that he was fired for unsatisfactory job performance. 928 F.2d at 122-23; see also Reeves, 530 U.S. at 147, 120 S.Ct. 2097 (“Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.”); Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 647 (4th Cir.2002) (“The fact that an employer has offered inconsistent post-hoc explanations for its employment decisions is probative of pretext....”); Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 432 (1st Cir.2000) (“[W]hen a company, at different times, gives different and arguably inconsistent explanations, a jury may infer that the articulated reasons are pretextual.”); Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir.1996) (“An employer’s changing rationale for making an adverse employment decision can be evidence of pretext.”); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir.1994) (concluding that reasonable juror could infer that employer’s inconsistent explanations were evidence of pretext). Based on the relevant precedent, Holland has presented sufficient evidence of pretext in this case, showing that Washington Homes has, at different times, given contradictory reasons for his termination. In order to counter Holland’s evidence that Washington Homes has made two conflicting — and irreconcilable — explanations for his termination, the majority concludes thát its reporting of a different termination reason to the Maryland Agency fails, as a matter of law, to cast doubt on its position in this case. In so doing, the majority relies on Washington Homes’ explanation that," }, { "docid": "22336693", "title": "", "text": "the yelling incident. Based on the repeated statements by Soto during his deposition that he fired Kanafani solely for the yelling incident (as well as D’Angelo’s corroboration of Soto’s termination motive), we find that a jury could infer that the \"inconsistencies” between Soto’s deposition and affidavit may be evidence of pretext. See Tidwell v. Carter Products, 135 F.3d 1422, 1427-28 (11th Cir.1998) (citing Bechtel Construction Co. v. Secretary of Labor, 50 F.3d 926 (11th Cir.1995); Howard v. BP Oil Co., Inc., 32 F.3d 520, 525 (11th Cir.1994)). Furthermore, Kanafani has produced sufficient evidence to create genuine issues of material fact as to his previous reprimands from Soto. Kanafani received three reprimands prior to the yelling incident for \"poor sales,” \"poor store conditions,” and an altercation with a beer vendor respectively. First, Kanafani testified that his store had become more profitable since he became store manager, creating a genuine issue of material fact as to the first reprimand. Second, while Kanafani received a reprimand for \"poor store conditions” during the busy Memorial Day Holiday Weekend, Fleming does not directly proffer this reprimand as a basis for Kanafani’s termination. Even if this reprimand were cited as a termination factor, we believe Kanafani has presented sufficient evidence that the reprimand was a pretext. During Memorial Day weekend, Kanafani was on vacation, and .not in charge of the store. Julio Nunez, a younger assistant manager at the time, actually was acting store manager for the weekend. Despite this fact, Kanafani, and not Nunez, was reprimanded for the store's “poor condition.” Nunez subsequently was promoted to store manager by Soto, replacing an older store manager, despite Soto’s admission that he was aware that Nunez, and not Kanafani, was primarily responsible for the poor store conditions during Memorial Day Weekend. Finally, Kanafani vigorously denies that he upbraided the beer vendor over complimentary football tickets offered to him, or told the vendor \"deliver better tickets or else.” All Kanafani admits to is politely returning the tickets because they were not to his satisfaction, creating a genuine issue of material fact as to this incident. We believe that" }, { "docid": "23362714", "title": "", "text": "intentional discrimination.” Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. Thus, “the question becomes whether the evidence,” when viewed as a whole, “yields the reasonable inference that the employer engaged in the alleged discrimination.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326 (11th Cir.2011). Put another way, the issue is whether there is “a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination.” Id. at 1328 (quotation marks and footnote omitted). We have recognized that “[a]fter a trial on the merits, [we] should not revisit whether the plaintiff established a prima facie case.” Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1194 (11th Cir.2004); accord Tidwell v. Carter Prods., 135 F.3d 1422, 1426 n. 1 (11th Cir.1998) (“Our task is not to revisit whether the plaintiff below successfully established a prima facie case of discrimination.”); Richardson v. Leeds Police Dep’t, 71 F.3d 801, 806 (11th Cir.1995) (“[T]he district court erred by visiting whether [the plaintiff] had established a prima facie case ... after the action was fully tried on the merits.... ”); Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1129 (11th Cir.1984) (“We are mindful ... that when a disparate treatment case is fully tried ... both the trial and the appellate courts should proceed directly to the ultimate question in the case.”). This rule reflects the fact that the basic function of the prima facie case is to “eliminate! ] the most common nondiscriminatory reasons for the plaintiffs rejection,” Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1094, and to “forc[e] the defendant to come forward with some response,” Hicks, 509 U.S. at 510-11, 113 S.Ct. at 2749. It is a procedural device designed to help “sharpen the inquiry” into the employer’s motivations. Burdine, 450 U.S. at 256 n. 8, 101 S.Ct. at 1095 n. 8. “[T]he employer is in the best position to put forth the actual reason for its decision.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000). Thus, once an employer proffers a reason for the action it" }, { "docid": "22393482", "title": "", "text": "Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir.1997)(holding that when employer produces negative performance reviews, employee’s assertion of his own good performance is insufficient to defeat summary judgement). Standard cannot show that the reasons listed on the worksheets are pretextual when he admits their truth, even if the forms are back-dated. The heart of the pretext inquiry is not whether the employee agrees with the reasons that the employer gives for the discharge, but whether the employer really was motivated by those reasons. Once Standard admitted that the other tooling department employees either had the superior qualities attributed to them or were perceived as having them by Grubbs, he can not establish pretext merely by disagreeing with the evaluations or by pointing out the back-dating. In order to directly attack Plaster Concepts’ reasons, Standard must demonstrate “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable fact finder could find [all of those reasons] unworthy of credence.” Combs, 106 F.3d at 1538. Standard has failed to produce such evidence, and so has failed to prove that the legitimate, nondiscriminatory reasons advanced by Plaster Concepts are merely pretext. Therefore, we must affirm the grant of summary judgement for defendants on the Title VII and the § 1981 wrongful discharge claims. 2. Failure to Promote in Violation of § 1981 In addition to his discharge, Standard alleges that he was not considered for a promotion because of his race and national origin, in violation of 42 U.S.C. § 1981. A few months after Standard was hired and began training as a mold-maker in the tooling department, Plaster Concepts decided to hire a manager for the production department. The company focused its search on bilingual persons with military backgrounds, with experience supervising and motivating unskilled workers. Although Standard mentioned his interest in the position, he was never considered for the job and was immediately told by Don Grubbs that they were looking for someone with a military background. Ultimately, Enrique Torres was hired for the supervisor’s job. He had twenty years of military" }, { "docid": "22036072", "title": "", "text": "held) because Lane was a woman. Remarks such as this one— isolated and unrelated to the challenged employment decision — are not direct evidence of discrimination. See Schoenfeld, 168 F.3d at 1266. We have said, however, that such comments can contribute to a circumstantial ease for pretext. In Ross v. Rhodes Furniture, Inc., 146 F.3d 1286 (1998), we determined that potentially discriminatory comments that were not directly related to the employment decision could contribute to a circumstantial showing of discriminatory intent. See id. at 1291. The facts of Ross, however, are clearly distinguishable. In Ross, fairly strong additional evidence supported a finding of pretext (specifically, that the supervisor who had fired plaintiff had been engaged in the same activity for which plaintiff was fired). But no such additional evidence exists here. The Ross court, in fact, explicitly noted that the evidence relating to the discriminatory comments had to be “read in conjunction with the entire record” and “considered together with” the other evidence in the case. See id. at 1291-92. Because Beguiristain’s alleged comment was (looking at the admissible evidence before the district court) an isolated comment, unrelated to the decision to fire Rojas, it, alone, is insufficient to establish a material fact on pretext. Rojas has also presented evidence that her supervisors before Beguiristain praised her work: Elizabeth Landon Lane testified in her deposition that Rojas had been one of the best Chief Veterinary Assistants she had ever had. These differences in the evaluation of Rojas’s performance do not establish a genuine issue on pretext. Different supervisors may impose different standards of behavior, and a new supervisor may decide to enforce policies that a previous supervisor did not consider important. Cf. Jones v. Gerwens, 874 F.2d 1534, 1542 n. 15 (11th Cir.1989). Nothing in the record indicates that Be-guiristain singled out Rojas for increased enforcement of departmental regulations. On the contrary, Beguiristain circulated a memo to all of his subordinates about the importance of following the department’s procedures. In addition, Bryan Lawrence — a man — was fired from his position as Veterinary Assistant for his failure to follow" }, { "docid": "7418670", "title": "", "text": "the average age of the sales force actually increased slightly after the RIF. Carter argues that its elimination of Tidwell’s territory was not a pretext for age discrimination, as is clear because the territory was eliminated and has not been replaced. Tidwell improperly questions Carter’s methodology and process in the RIF. Tidwell also focuses on the difference in age between himself and Booth and questions the wisdom of the choice to retain Booth. However, while Booth absorbed some of Tidwell’s accounts, he was not hired to replace Tidwell. Tidwell also points out that he was never offered a transfer to Miami. This contention is superfluous, since no other workers were offered transfers and Tidwell himself never suggested the idea. See Zaben v. Air Products & Chem., Inc., 129 F.3d 1453, 1459 (11th Cir.1997) (employee’s contention that he should have been allowed to transfer did not present sufficient evidence of pretext to create a jury question when no other workers were permitted to transfer either). All of these contentions by Tidwell are disagreements about the wisdom of Carter’s decision to retain Booth and the Miami territory, rather than disbelief in the RIF and its application to Tidwell. “[A] plaintiff may not establish that an employer’s proffered reason is pretextual merely by questioning the wisdom of the employer’s reason, at least not where, as here, the reason is one that might motivate a reasonable employer.” Combs, 106 F.3d at 1543. III. “Inconsistent” Remarks Tidwell maintains that certain alleged inconsistencies as to the reason given for Tid-well’s termination allow an inference of pretext. Carter maintains that the reason for its decision was based on its reorganization and an evaluation of its territorial needs. Tidwell points to several instances to show Carter’s inconsistency. A few days before his termination, Tidwell was asked to meet with a supervisor in Atlanta, Tim Cleary, and the head of Carter’s personnel department, Denise Duca. At this time Tidwell was told that he had done a great job but that his position was being terminated due to the realignment of territory. When Tidwell asked Cleary who was going to" }, { "docid": "23362713", "title": "", "text": "actually motivated by the proffered reasons.” Id. (quotation marks omitted). However, “the defendant must clearly set forth ... the reasons for the plaintiffs rejection.” Burdine, 450 U.S. at 255, 101 S.Ct. at 1094. Once the employer identifies a legitimate, nondiscriminatory reason for its decision, the presumption of discrimination disappears, and the burden shifts back to the plaintiff “to demonstrate that the proffered reason was not the true reason for the employment decision.” Id. at 256, 101 S.Ct. at 1095. The plaintiff “cannot recast the reason but must meet it head on and rebut it.” Wilson, 376 F.3d at 1088. The plaintiff must show “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in the employer’s rationale. Combs, 106 F.3d at 1538 (quotation marks omitted). To do so, the plaintiff may rely on the evidence offered initially to establish the prima facie case. Wilson, 376 F.3d at 1088. At this stage, the plaintiffs burden of rebutting the employer’s proffered reasons “merges with the [plaintiffs] ultimate burden of persuading [the finder of fact] that she has been the victim of intentional discrimination.” Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. Thus, “the question becomes whether the evidence,” when viewed as a whole, “yields the reasonable inference that the employer engaged in the alleged discrimination.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326 (11th Cir.2011). Put another way, the issue is whether there is “a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination.” Id. at 1328 (quotation marks and footnote omitted). We have recognized that “[a]fter a trial on the merits, [we] should not revisit whether the plaintiff established a prima facie case.” Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1194 (11th Cir.2004); accord Tidwell v. Carter Prods., 135 F.3d 1422, 1426 n. 1 (11th Cir.1998) (“Our task is not to revisit whether the plaintiff below successfully established a prima facie case of discrimination.”); Richardson v. Leeds Police Dep’t, 71 F.3d 801, 806 (11th Cir.1995) (“[T]he district court erred by visiting whether [the plaintiff] had established a prima facie case ... after the action was fully tried" }, { "docid": "6881183", "title": "", "text": "Valley Auth., 704 F.2d 613, 619 (11th Cir.), modified in part on reh’g on other grounds, 714 F.2d 1066 (11th Cir.), cert. denied, 465 U.S. 1066, 104 S.Ct. 1415, 79 L.Ed.2d 741 (1984). To this aim, plaintiffs ensuing “burden of proving [that the employer’s proffered explanation is pretextual] merges with the plaintiffs ultimate burden of proving that age was a determining factor in his discharge, and it can be met by showing that a discriminatory reason more likely than not motivated the employer’s decision, or by discrediting the employer’s proffered explanation.” Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1228 (11th Cir.1993). Under the latter approach, plaintiff must demonstrate “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could find [all of those reasons] unworthy of credence.” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir.1997) (internal quotation marks and citation omitted), cert. denied, — U.S. -, 118 S.Ct. 685, 139 L.Ed.2d 632 (1998). Because of the procedural posture of this case, vye assume, without deciding, that Watkins and Mallory presented prima facie cases of age discrimination. See Tidwell, 135 F.3d at 1426 n. 1 (in reviewing district court’s decision on employer’s motion for judgment as a matter of law at the close of all the evidence, appellate court’s task “is not to revisit whether the plaintiff below successfully established a prima facie case of discrimination[]”). Likewise, no dispute exists that Sverdrup met its burden of production, that is, it proffered the RIF—including the reasons behind its implementation and plaintiffs’ inclusion in it—as a facially legitimate, nondiscriminatory reason for discharging plaintiffs. Presently, then, we focus on whether Watkins and Mallory presented sufficient evidence for a reasonable jury to find that the RIF was a pretext for intentional age discrimination, Our review of the record reveals no such jury question. First, the data concerning employment activity at TEAS in November 1992—the only real affirmative evidence of-age discrimination that Watkins and Mallory presented in their case-in-chief—lacked sufficient depth, specificity and probative value to constitute both prima facie and pretext" } ]

[ { "docid": "22669525", "title": "", "text": "at some time after the initial taking . . . satisfies] the requirements of procedural due process.” 451 U. S., at 539 (footnote omitted). We reasoned that where a loss of property is occasioned by a random, unauthorized act by a state employee, rather than by an established state procedure, the state cannot predict when the loss will occur. Id., at 541. Under these circumstances, we observed: “It is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place. The loss of property, although attributable to the State as action under ‘color of law,’ is in almost all cases beyond the control of the State. Indeed, in most cases it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation.” Ibid. Two Terms ago, we reaffirmed our holding in Parratt in Logan v. Zimmerman Brush Co., 455 U. S. 422 (1982), in the course of holding that postdeprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action. While Parrott is necessarily limited by its facts to negligent deprivations of property, it is evident, as the Court of Appeals recognized, that its reasoning applies as well to intentional deprivations of property. The underlying rationale of Parrott is that when deprivations of property are effected through random and unauthorized conduct of a state employee, predeprivation procedures are simply “impracticable” since the state cannot know when such deprivations will occur. We can discern no logical distinction between negligent and intentional deprivations of property insofar as the “practicability” of affording predeprivation process is concerned. The state can no more anticipate and control in advance the random and unauthorized intentional conduct of its employees than it can anticipate similar negligent conduct. Arguably, intentional acts are even more difficult to anticipate because one bent on intentionally depriving a person of his property might well take affirmative steps to avoid signalling his intent. If negligent deprivations of property do not violate the Due Process Clause because predeprivation process is" } ]

[ { "docid": "23168525", "title": "", "text": "or constitutional claims the right to sue in federal court without first resorting to state judicial remedies, Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961), or state administrative remedies, Patsy v. Board of Regents, 457 U.S. 496, 500-01, 102 S.Ct. 2557, 2559-60, 73 L.Ed.2d 172 (1982). Some confusion of these principles has resulted from the Supreme Court’s decisions in Parratt v. Taylor, 451 U.S. 527, 543, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981), and Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393 (1984), which held that when a plaintiff claims a due process violation based on the deprivation of a property interest by a random, unauthorized act, the “due process” required by the fourteenth amendment is satisfied by the availability at the state level of an adequate post-deprivation hearing. Thus, if the deprivation is caused by random, unauthorized state conduct and an adequate post-deprivation hearing is available, there is no denial of “due process”, and therefore, no constitutional violation on which to base a § 1983 claim. Kraebel’s claim, however, does not come within the Parratt/Hudson rule, because it cannot be characterized as a challenge to a random, unauthorized act. Instead, she attacks established state procedures that cause the delays and burdens which deprive her of her property. As the Supreme Court has noted, where it is “the ‘established state procedure’ that destroys [plaintiff’s] entitlement without according him proper procedural safeguards”, the plaintiff is entitled to pursue a due process claim under § 1983. Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 102 S.Ct. 1148, 1158, 71 L.Ed.2d 265 (1982) (“it is the state system itself that destroys a complainant’s property interest, by operation of law”). Thus, the district court erred in concluding that the mere availability of redress in state court satisfied Krae-bel’s right to due process. Since Kraebel’s due process claim is not barred by the availability of a state remedy, we must analyze more closely the claim which she advances. There are two questions in the due process inquiry: first, “Was she" }, { "docid": "8259924", "title": "", "text": "defendants state that plaintiffs rights were terminated pursuant to Section 207-c because a medical examiner determined that plaintiff was able to perform light-duty work. (Defs. Reply Mem. Supp. Mot. Dismiss at 2-3.) Therefore, defendants were acting pursuant to established state regulation. In situations where a government actor is acting pursuant to established state regulation, and therefore the act is a foreseeable result, some minimal pre-termination proceeding is required. Defendants have not cited, nor are we aware of, any law to the contrary. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 433-37, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (holding that post-deprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action). Indeed, defendants cite a case that makes this very point. (Defs. Mem. Supp. Mot. Dismiss at 4 (citing Hellenic Am. Neighborhood Action Comm., 101 F.3d at 880-81).) The Second Circuit in Hellenic American Neighborhood Action Committee stated: When reviewing alleged procedural due process violations, the Supreme Court has distinguished between (a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees In the latter case, the Due Process Clause of the Fourteenth Amendment is not violated when a state employee intentionally deprives an individual of property or liberty, so long as the State provides a meaningful post-deprivation remedy.... When the deprivation occurs in the more structured environment of established state procedures, rather than random acts, the availability of post-deprivation procedures will not, ipso facto, satisfy due process. Id. at 880-81 (determining plaintiffs claims, alleging that due process violations were caused by a state official’s actions in flagrant violation of the City Charter and Rules and not by an established state procedure, could not survive because New York provided adequate post-deprivation procedures) (internal citations omitted); see McDarby v. Dinkins, 907 F.2d 1334, 1337-38 (2d Cir.1990) (“When the minimal due process requirements of notice and hearing have been met, a claim that an agency’s policies or regulations have not been adhered to does not sustain an action" }, { "docid": "8122182", "title": "", "text": "with the disciplinary hearing in the following ways: first, that the five-member Board made its determination based on evidence outside of the record at the hearing, including statements allegedly made by Chief Ogden to the Commissioners five months before the hearing that plaintiffs wife had also reported domestic abuse before the incident for which he was being charged, and that the department had not taken a firm stand but should do so this time; second, that the Mayor deliberately stalled the Commission’s meeting and discussion of the matter after the hearing until it could be arranged that only the three Commissioners who would vote for termination could be present; third, that at that meeting the Mayor “cast his pre-determined vote along with [those of] his two political cronies and by unsigned determination ... this group of three convicted Plaintiff and summarily terminated his employment.” Plaintiff also alleges that Chief Ogden and certain of his subordinate officers (presumably at the Chiefs direction) testified perjuriously at the hearing in order to provide the Board with evidence sufficient to justify a conviction and termination of plaintiff. Plaintiff further alleges that Ogden and Mayor DeStefano arranged to have the disciplinary hearing stenographic record altered “in at least two critical respects,” though plaintiff does not specify what they are. Plaintiff has provided no evidentiary support for his musings that Chief Ogden or others lied, and that the Chief and the Mayor doctored the hearing transcript to cover up such lies. However, plaintiffs factual allegations are irrelevant. Plaintiff has no claim for denial of due process because the availability of an Article 78 proceeding constitutes an adequate post-deprivation remedy for any of the alleged due process violations, or for all of them taken together. Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir.1996) (citing Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)); see also Marino v. Ameruso, 837 F.2d 45 (2d Cir.1988). The Supreme Court has drawn a distinction between due process claims based on established state procedures and claims based on random, unauthorized" }, { "docid": "3025824", "title": "", "text": "its ultimate decision on the ground of “misappropriation,” which was the reason given in the notice letter; the hearing panel was biased; and the hearing panel did not deliberate. However, decisions of the Supreme Court in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), and Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990), indicate that these allegations are insufficient to state a claim under 42 U.S.C. § 1983. 2. Due Process after Parratt/Hudson The Parratt/Hudson doctrine provides that a random, unauthorized deprivation of a property or liberty interest does not violate due process if the state furnishes an adequate post-deprivation remedy. Caine v. Hardy, 943 F.2d 1406, 1412 (5th Cir.1991) (rehearing en banc). In Parratt, a prisoner brought a section 1983 lawsuit against state prison officials after they negligently lost his mail-ordered hobby kit. The prisoner alleged that this deprived him of property without due process of law. The Supreme Court rejected this claim and held that a predeprivation hearing is not always required. Parratt, 451 U.S. at 540, 101 S.Ct. at 1915. The Court noted that the state had provided predeprivation procedures that would have protected the plaintiff’s property interest, but the prison officials failed to follow these procedures. The Court held that situations involving a loss of property caused by random and unauthorized acts of state officials in contravention of established state procedures cannot be predicted. Id. at 541, 101 S.Ct. at 1916. Therefore, the Court concluded that negligent deprivations which occur without a prior hearing do not violate the fourteenth amendment’s due process clause as long as the state provides a “meaningful post-deprivation remedy.” Id. at 544, 101 S.Ct. at 1917. The Court reinforced this holding in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). Logan held, however, that the Parratt rationale applies only when the injury is caused by a failure to follow established and adequate state procedures. It does not apply when the state procedures" }, { "docid": "10612252", "title": "", "text": "over the claims and should decline to exercise supplemental jurisdiction over them, and (2) adequate state law post-deprivation remedies preclude Plaintiff from bringing a procedural due process claim pursuant to § 1983 because he has not alleged a lack of state law remedies or that the remedies were futile. Defs.’ Mem. 14-15; Defs.’ Reply Mem. 9-11. The Court will begin by addressing Defendants’ second argument. 1. Legal Standard When reviewing allegations of procedural due process violations, the Supreme Court has distinguished between: (1) claims that are based on random, unauthorized acts by state employees such that it would be impossible for the state to provide a pre-deprivation hearing, which are governed by the Supreme Court’s decisions in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); and (2) claims that are based on established state procedures, municipal polices, or actions by a high-ranking government official with final authority over relevant matters, which are governed by Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) and Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). Where a plaintiff asserts a procedural due process claim that falls within the purview of Parratt and Hudson, a plaintiff cannot state a valid § 1983 claim unless he alleges that state law post-deprivation remedies are unavailable or inadequate. See, e.g., Rackley, 186 F.Supp.2d at 481 (“Relevant Supreme Court and Second Circuit precedents establish that the availability of adequate pre-deprivation and post-deprivation remedies under state law will defeat a § 1983 action ... so long as the claimant had sufficient notice of such remedies.”) (internal citations omitted). However, the “random and unauthorized” exception does not apply “where the government actor in question is a high-ranking official with ‘final authority over significant matters.’ ” DiBlasio v. Novello, 344 F.3d 292, 302-03 (2d Cir.2003) (quoting Burtnieks v. City of New York, 716 F.2d 982, 988 (2d Cir.1983)). In Zinermon, the Supreme Court clarified the meaning of “unauthorized,” explaining that where" }, { "docid": "19746507", "title": "", "text": "Harris does have a property interest in his revoked medical license, his complaint does not adequately allege a due process violation. The Supreme Court has held that the Due Process Clause of the Fourteenth Amendment is not violated when an individual is deprived of property as the result of an unauthorized act of a state employee, as opposed to an established state procedure, provided that the state makes available a meaningful post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 531, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Marino v. Ameruso, 837 F.2d 45, 47 (2d Cir.1988). Harris does not allege a deficiency in the established procedures of the medical license restoration process that systematically deprives applicants of due process. Rather, Harris alleges that in his particular case, the particular members of the Committee on Professions deprived him of his right to due process by not sufficiently accommodating his learning disabilities. However, by permitting individuals aggrieved by the actions of state administrative agencies to initiate an Article 78 proceeding, New York courts provide an adequate and meaningful post-deprivation remedy. See N.Y. Public Health Law § 230-c(5) (“An order of the administrative review board for professional medical conduct or a determination of a committee ... may be reviewed pursuant to the proceedings under article seventy-eight of the civil practice law and rules.”). The constitutional adequacy of this remedy has been confirmed by the Second Circuit. See Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 881 (2d Cir.1996); see also Locurto v. Safir, 264 F.3d 154, 174 (2d Cir.2001) (“An Article 78 proceeding permits a petitioner to submit affidavits and other written evidence, and where a material issue of fact is raised, have a trial of the disputed issue, including constitutional claims.”). Indeed, Harris was certainly familiar with Article 78 proceedings, having availed himself of that remedy after his medical license was initially revoked." }, { "docid": "8122183", "title": "", "text": "to justify a conviction and termination of plaintiff. Plaintiff further alleges that Ogden and Mayor DeStefano arranged to have the disciplinary hearing stenographic record altered “in at least two critical respects,” though plaintiff does not specify what they are. Plaintiff has provided no evidentiary support for his musings that Chief Ogden or others lied, and that the Chief and the Mayor doctored the hearing transcript to cover up such lies. However, plaintiffs factual allegations are irrelevant. Plaintiff has no claim for denial of due process because the availability of an Article 78 proceeding constitutes an adequate post-deprivation remedy for any of the alleged due process violations, or for all of them taken together. Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir.1996) (citing Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)); see also Marino v. Ameruso, 837 F.2d 45 (2d Cir.1988). The Supreme Court has drawn a distinction between due process claims based on established state procedures and claims based on random, unauthorized acts by state employees. See Hudson, 468 U.S. at 532, 104 S.Ct. 3194; Parrott v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). When the deprivation occurs in the more structured environment of established state procedures, rather than due to random acts, the availability of post-deprivation procedures (like Article 78 review) will not satisfy due process. Hudson, 468 U.S. at 532, 104 S.Ct. 3194; Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). Plaintiff argues, in response to defendants’ motion for summary judgment, that his termination was not the result of random or unauthorized actions by state actors, but rather a deprivation that occurred “in [the] more structured environment of a City or State procedure.” Plaintiffs Brief at 50. Plaintiffs factual allegations, however, do not support such an argument. Birmingham does not claim that the established state procedure for dismissing municipal employees violates due process. Rather, he claims that his hearing was conducted, and he was dismissed, in flagrant violation of the rules that" }, { "docid": "7254211", "title": "", "text": "affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Nat’l Org. for Women v. Pataki, 261 F.3d 156, 167-68 (2d Cir.2001) (quoting Math ews, 424 U.S. at 335, 96 S.Ct. 893) (quotation marks omitted). The type of process due depends in part on whether the alleged violation was caused by “established state procedures” or by “random, unauthorized acts by state employees.” Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir.1996) (citing Hudson v. Palmer, 468 U.S. 517, 532, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) and Parrott v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)). Specifically, when a state employee intentionally deprives an individual of property or liberty through a random, unauthorized act, the Due Process Clause of the Fourteenth Amendment is not violated “so long as the state provides a meaningful postdeprivation remedy.” Hellenic Am. Neighborhood Action Comm., 101 F.3d at 880. However, when the state’s deprivation of an individual’s property or liberty “occurs in the more structured environment of established state procedures,” rather than through random acts, “the availability of post deprivation procedures, will not, ipso facto, satisfy due process.” Id. In other words, “an adequate post-deprivation remedy is a defense to a Section 1983 due process claim only where the deprivation is random and unauthorized.” Alexandre v. Cortes, 140 F.3d 406, 411 (2d Cir.1998). 1. Notice and an Opportunity to be Heard in Connection with Forfeiture Proceedings The City sold the Ryan, Linehan, Rodriguez and Walcott Vehicles pursuant to judgments of forfeiture. Ford Credit possessed a valid lien on each of those vehicles, but it was not notified of the forfeiture proceedings, nor provided an opportunity to be heard in connection with those proceedings. The forfeiture and sale of the vehicles extinguished Ford Credit’s liens. Ford Credit maintains that" }, { "docid": "12844841", "title": "", "text": "medicine, but argued that DiBlasio’s post-deprivation hearing satisfied due process requirements. ■ The district court agreed, determining that Novello’s allegedly defamatory statements were “random and unauthorized,” and hence that only a post-deprivation hearing was required. The court further found that the Article 78 proceeding and the hearing committee’s proceedings provided adequate post-deprivation name-clearing hearings. See Hellenic Am. Neighborhood, Action Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir.1996). On that basis, the court dismissed DiBla-sio’s “stigma plus” claim. We conclude that the district court erred in finding that the conduct of a high-ranking official such as Novello was “random and unauthorized” and accordingly remand for further proceedings. Generally, due process requires that a state afford persons “some kind of hearing” prior to depriving them of a liberty or property interest. See Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 299, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). However, due process does not require the impossible. See Zinermon v. Burch, 494 U.S. 113, 128-29, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). Where a deprivation at the hands of a government actor is “random and unauthorized,” hence rendering it impossible for the government to provide a pre-deprivation hearing, due process requires only a post-deprivation proceeding. See Parratt v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) (loss of a prisoner’s mail-order product was a negligent, random, and unauthorized act by a prison employee, and hence a post-deprivation tort suit was sufficient to satisfy due process); see also Hudson v. Palmer, 468 U.S. 517, 534, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (only post-deprivation remedy is required following intentional destruction of an inmate’s personal property by a prison guard, because the state was not “in a position to provide for predeprivation process”). . We have determined, however, that the “random and unauthorized” exception to the requirement of a pre-deprivation hearing does not apply where the government actor in question is a high-ranking official with “final authority over significant matters.” Burtnieks v. City of New York, 716 F.2d 982, 988 (2d Cir.1983); see also" }, { "docid": "23683169", "title": "", "text": "to payment is a property right. We also held that Chicago’s practice of delaying payments beyond the time permitted by Illinois statute constituted a deprivation of property without due process of law. Id. at 1297-1298. Lenard’s claim is distinguishable in that he does not allege a practice of delay, but only a failure to pay the amount owed one person — himself. In light of Evans, however, we cannot say that such a claim is unsubstantial. The Village argues that Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), forecloses any federal claim Lenard might have. Parratt holds that there is no procedural due process violation if a state provides meaningful postdeprivation remedies. Id. at 539, 101 S.Ct. at 1915; Hudson v. Palmer, 468 U.S. 517, 531, 104 S.Ct. 3194, 3202, 82 L.Ed.2d 393 (1984). The Village points to Lenard’s ability to raise his two pendent claims in state court as constituting an adequate postdeprivation remedy. However, Par-ratt applies only to deprivations caused by random and unauthorized acts, Hudson, 468 U.S. at 532-533, 104 S.Ct. at 3203; Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-436, 102 S.Ct. 1148, 1158, 71 L.Ed. 2d 265 (1982); Parratt, 451 U.S. at 541, 101 S.Ct. at 1916, and Lenard has a substantial, if not meritorious, argument that claims like his, which involve intentional and authorized official acts of a municipality, are not foreclosed by Parratt. See Wolfenbarger v. Williams, 774 F.2d 358, 363-365 (10th Cir.1985), certiorari denied, 475 U.S. 1065, 106 S.Ct. 1376, 89 L.Ed.2d 602 (1986), and the cases cited therein. Without deciding whether Lenard ultimately could have prevailed on his due process claim, or even whether his allegations could have withstood a motion to dismiss, we hold that the due process claim was a substantial federal claim sufficient to confer subject matter jurisdiction upon the court. The § 9-102 claim could appropriately be considered pursuant to the district court’s pendent jurisdiction. B. Appeal Nos. 86-2080, 86-8131, and 86-3132 We now consider whether the district court had jurisdiction over the other three cases that are part of this" }, { "docid": "12575347", "title": "", "text": "the only allegation of racial discrimination is conclusory. I. Due Process Claim The Due Process Clause does not protect against all deprivations of constitutionally protected interests in life, liberty, or property, “only against deprivations without due process of law.” Parrott v. Taylor, 451 U.S. 527, 537, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) (internal quotation marks omitted), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). “[T]o determine whether a constitutional violation has occurred, it is necessary to ask what process the State provided, and whether it was constitutionally adequate.” Zinermon v. Burch, 494 U.S. 113, 126, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). As we explained in Hellenic American Neighborhood Action Committee v. City of New York (“HANAC’), in evaluating what process satisfies the Due Process Clause, “the Supreme Court has distinguished between (a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees.” 101 F.3d 877, 880 (2d Cir.1996) (citing Hudson v. Palmer, 468 U.S. 517, 532, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), and Parratt, 451 U.S. at 541, 101 S.Ct. 1908). When the state conduct in question is random and unauthorized, the state satisfies procedural due process requirements so long as it provides meaningful post-deprivation remedy. Id.; see Hudson, 468 U.S. at 533, 104 S.Ct. 3194 (explaining that when deprivations are “random and unauthorized ... predeprivation procedures are simply impracticable since the state cannot know when such deprivations will occur” (internal quotation marks omitted)). In contrast, when the deprivation is pursuant to an established state procedure, the state can predict when it will occur and is in the position to provide a pre-deprivation hearing. HANAC, 101 F.3d at 880; Parratt, 451 U.S. at 541, 101 S.Ct. 1908. Under those circumstances, “the availability of post-deprivation procedures will not, ipso facto, satisfy due process.” HANAC, 101 F.3d at 880. The distinction between random and unauthorized conduct and established state procedures, however,- is not clear-cut. In Zinermon v. Burch, the Court held that government actors’ conduct cannot be considered random" }, { "docid": "9592229", "title": "", "text": "pre deprivation procedures were inadequate. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); Loudermill v. Cleveland Board of Education, 721 F.2d at 560. In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the Supreme Court held that where an individual is deprived of property because of the negligent, random and unauthorized act of a state employee, it is impracticable for the state to provide any meaningful predepri vation procedure. Since a state cannot predict when its employees will act in a random and unauthorized manner, it is impracticable in such cases to require the state to provide meaningful predeprivation procedures. The Supreme Court has extended the Parratt holding to intentional deprivations of property which result from the random and unauthorized acts of state employees. Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393 (1984). Again, the rationale is that a state cannot predict when its employees will act in a random and unauthorized manner so as to provide a meaningful predeprivation procedure. Parratt, however, has not been extended to acts of state employees which are not random and unauthorized, but which are done pursuant to State procedures. Hudson v. Palmer, 104 S.Ct. at 3203; Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). As the Supreme Court explained in Hudson: Two Terms ago, we reaffirmed our holding in Parratt in Logan v. Zimmerman Brush Co., 455 U.S. 422 [102 S.Ct. 1148, 71 L.Ed.2d 265] (1982), in the course of holding that postdeprivation remedies do not satisfy due process where a deprivation of property is caused by conduct pursuant to established state procedure, rather than random and unauthorized action. 104 S.Ct. at 3203. Like the complainant in Logan, the plaintiff in the case at bar has challenged actions which were done pursuant to established state procedure. We must therefore determine whether the predeprivation procedures afforded the plaintiff satisfied the due process requirement, regardless of the availability of any postdeprivation procedures. Logan, supra, at 436. See also Loudermill v." }, { "docid": "22254445", "title": "", "text": "point out that Fed.R.Civ.P. 15(a) allows a plaintiff to amend the complaint “as a matter of course at any time before a responsive pleading is served.” As the defendants had not been served when Wright attempted to amend his complaint, the district court abused its discretion in denying the amendment. Our discussion therefore refers to the complaint as if the motion to amend had been granted. A. Procedural Due Process In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the Supreme Court held that the allegation of an unauthorized deprivation of property does not state a procedural due process claim where an adequate state remedy exists to redress the deprivation. In Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), the Court explained that post-deprivation remedies do not satisfy the due process requirement where the deprivation of property is effected pursuant to established state procedure, rather than through random, unauthorized action. In Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the Court further clarified its holding in Parratt by explaining that post-deprivation remedies may provide due process where the deprivation was intentional, rather than negligent, so long as it was random or unauthorized. In this case, if Wright sufficiently alleged facts demonstrating that the deprivation was the result of established state procedure, the district court erred in holding that he must resort to state post-deprivation remedies. Contrary to the district court’s finding, Wright has not merely stated conclusions of law but has alleged facts that, if true, would support the finding that the deprivation in this case was the result of established state procedure. Diaz and Mincey were ordered to search the cell by a superior. See Neary v. Dugger, 766 F.2d 456, 457 (11th Cir.1985) (allegation of confiscation during search conducted pursuant to established state procedure states claim of deprivation without due process). According to Wright’s allegations, confiscations of legal materials at GSP have taken place in the past and continue despite court orders to the contrary and notice to the warden and" }, { "docid": "8122185", "title": "", "text": "should govern such proceedings and decisions. Assuming for the moment that Birmingham was deprived of his job without due process of law, that deprivation occurred because of random and arbitrary acts of Chief Ogden and certain of the Police Commissioners in ignoring matters of procedure. As such, his due process claim falls under the rule of Parrott and its progeny that random and unauthorized due process deprivations can be remedied via an Article 78 proceeding (or other, similar post-deprivation remedy). Birmingham’s claim survives only if New York does not provide such a procedure. It does; his claim does not. This Circuit has held that “an Article 78 proceeding is a perfectly adequate post-deprivation remedy.... ” Hellenic Am. Neighborhood Action Comm., 101 F.3d at 881; see also Interboro Inst., Inc. v. Foley, 985 F.2d 90, 93 (2d Cir.1993); McDarby v. Dinkins, 907 F.2d 1334, 1338 (2d Cir.1990); Giglio v. Dunn, 732 F.2d 1133, 1135 (2d Cir.1984). Furthermore, plaintiff, having failed to take advantage of this remedy, “can find little comfort in the general rule that § 1983 allows plaintiffs with federal or constitutional claims to sue in federal court without first exhausting judicial or administrative remedies.” Hellenic Am. Neighborhood Action Comm., 101 F.3d at 881 (citing Kraebel v. New York City Dep’t of Hous. Preservation & Dev., 959 F.2d 395, 404 (2d Cir.1992)); see also Patsy, 457 U.S. at 500-01, 102 S.Ct. 2557; Monroe v. Pape, 365 U.S. at 183, 81 S.Ct. 473, overruled on other grounds by Monell v. Department of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). There is no constitutional violation when the state affords an adequate post-deprivation remedy for a random, arbitrary deprivation of property or liberty. Zinermon v. Burch, 494 U.S. 113, 132, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990); Hudson, 468 U.S. at 531, 533, 104 S.Ct. 3194; Parratt, 451 U.S. at 541, 101 S.Ct. 1908. Thus, plaintiffs due process claim must be dismissed. 2d. Plaintiffs Fourth Cause of Action Plaintiff, in his Fourth cause of action, contends that the defendants’ actions in dismissing him from the police force violated" }, { "docid": "4137139", "title": "", "text": "due process analysis is satisfied. Generally, “some kind of hearing” is required before the State can deprive a person of a protected property interest. DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir.2003) (citing Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 299, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981)). However, an exception to the general rule exists when the deprivation is the result of a “random and unauthorized” act of the State. See Parratt v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Hudson v. Palmer, 468 U.S. 517, 531-32, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); see also Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 984, 108 L.Ed.2d 100 (1990) (citations omitted); DiBlasio, 344 F.3d at 302; Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir.1996). In Hellenic, the Second Circuit clearly explained the distinction between “established” state procedures and “random and unauthorized acts,” and the surrounding legal framework, as established by Par-ratt, Hudson and the cases that followed those decisions. When reviewing alleged procedural due process violations, the Supreme Court has distinguished between (a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees .... In the latter case, the Due Process Clause of the Fourteenth Amendment is not violated when a state employee intentionally deprives an individual of property or liberty, so long as the State provides a meaningful postdeprivation remedy.... When the deprivation occurs in the more structured environment of established state procedures, rather than random acts, the availability of postdeprivation procedures will not, ipso facto, satisfy due process.... The Supreme Court’s different treatment of the two situations rests on pragmatic considerations.... When a deprivation occurs because of a random, arbitrary act by a state employee “[i]t is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place. The loss of property, although attributable to the" }, { "docid": "18575344", "title": "", "text": "not directly addressed the issue of whether Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), applies to procedural due process claims based on deprivations of liberty as well as to those based on deprivations of property. In Parratt, the Supreme Court held that “takings of property without any predeprivation process” are permissible under the due process clause of the Fourteenth Amendment when the loss is the “result of a random and unauthorized act by a state employee” rather than “a result of some established state procedure.” 451 U.S. at 541, 101 S.Ct. at 1916. The Court noted that “[i]t is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place.” Id. The Court found that the availability of a meaningful post-deprivation hearing satisfied the requirements of procedural due process because there were state remedies that could have fully compensated the plaintiff, even though those remedies may not have been as extensive as the remedies available under section 1983. Id. at 537-44, 101 S.Ct. at 1913-17. In the present case, the conduct complained of by Thomas is not conduct that is pursuant to established state procedures; it is conduct that is clearly “random and unauthorized.” Parratt, 451 U.S. at 541, 101 S.Ct. at 1916; see Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 102 S.Ct. 1148, 1158, 71 L.Ed.2d 265 (1982). As the Supreme Court made clear in Hudson v. Palmer, the “controlling inquiry” under Parratt “is solely whether the state is in a position to provide for predeprivation process.” 104 S.Ct. 3194, 3204 (1984). In my view, there is no logical reason to restrict the application of Parratt to property deprivations. Since a state is in no better position to anticipate random or unauthorized deprivations of liberty than it is of property, I believe that the rationale of Parratt extends to cases of liberty deprivations. The decisions of the majority of other circuits that have considered this question support this conclusion. See Toney-El v. Franzen, 777 F.2d 1224, 1227-28 (7th Cir.1985) (“In section 1983 actions challenging the" }, { "docid": "22167116", "title": "", "text": "district court granted HANAC a preliminary injunction on the twin grounds that the City was depriving HANAC of its property and liberty interests without due process of law. We find it unnecessary to address all of the issues raised by the defendants on appeal because the district court’s grant of a preliminary injunction should be reversed on other grounds. When reviewing alleged procedural due process violations, the Supreme Court has distinguished between (a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees. See Hudson v. Palmer, 468 U.S. 517, 532, 104 S.Ct. 3194, 3203, 82 L.Ed.2d 393 (1984); Parrott v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 1916, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). In the latter case, the Due Process Clause of the Fourteenth Amendment is not violated when a state employee intentionally deprives an individual of property or liberty, so long as the State provides a meaningful postdepri-vation remedy. Hudson v. Palmer, 468 U.S. at 531, 533, 104 S.Ct. at 3202-03, 3203-04. When the deprivation occurs in the more structured environment of established state procedures, rather than random acts, the availability of postdeprivation procedures will not, ipso facto, satisfy due process. Id. at 532, 104 S.Ct. at 3203; Logan v. Zimmerman Brash Co., 455 U.S. 422, 435-36, 102 S.Ct. 1148, 1157-58, 71 L.Ed.2d 265 (1982). The Supreme Court’s different treatment of the two situations rests on pragmatic considerations. See Hudson v. Palmer, 468 U.S. at 532-33, 104 S.Ct. at 3203-04. When a deprivation occurs because of a random, arbitrary act by a state employee “[i]t is difficult to conceive of how the State could provide a meaningful hearing before the deprivation takes place. The loss of property, although attributable to the State as action under ‘color of law,’ is ... almost ... [invariably] beyond the control of the State. Indeed, in most cases it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation.” Id. at 532, 104 S.Ct." }, { "docid": "8122184", "title": "", "text": "acts by state employees. See Hudson, 468 U.S. at 532, 104 S.Ct. 3194; Parrott v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). When the deprivation occurs in the more structured environment of established state procedures, rather than due to random acts, the availability of post-deprivation procedures (like Article 78 review) will not satisfy due process. Hudson, 468 U.S. at 532, 104 S.Ct. 3194; Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). Plaintiff argues, in response to defendants’ motion for summary judgment, that his termination was not the result of random or unauthorized actions by state actors, but rather a deprivation that occurred “in [the] more structured environment of a City or State procedure.” Plaintiffs Brief at 50. Plaintiffs factual allegations, however, do not support such an argument. Birmingham does not claim that the established state procedure for dismissing municipal employees violates due process. Rather, he claims that his hearing was conducted, and he was dismissed, in flagrant violation of the rules that should govern such proceedings and decisions. Assuming for the moment that Birmingham was deprived of his job without due process of law, that deprivation occurred because of random and arbitrary acts of Chief Ogden and certain of the Police Commissioners in ignoring matters of procedure. As such, his due process claim falls under the rule of Parrott and its progeny that random and unauthorized due process deprivations can be remedied via an Article 78 proceeding (or other, similar post-deprivation remedy). Birmingham’s claim survives only if New York does not provide such a procedure. It does; his claim does not. This Circuit has held that “an Article 78 proceeding is a perfectly adequate post-deprivation remedy.... ” Hellenic Am. Neighborhood Action Comm., 101 F.3d at 881; see also Interboro Inst., Inc. v. Foley, 985 F.2d 90, 93 (2d Cir.1993); McDarby v. Dinkins, 907 F.2d 1334, 1338 (2d Cir.1990); Giglio v. Dunn, 732 F.2d 1133, 1135 (2d Cir.1984). Furthermore, plaintiff, having failed to take advantage of this remedy, “can find little comfort in the general rule that §" }, { "docid": "8259921", "title": "", "text": "person has a property interest that is terminated, “procedural due process is satisfied if the government provides notice and a limited opportunity to be heard prior to termination, so long as a full adversarial hearing is provided afterwards.” Locurto v. Safir, 264 F.3d 154, 171 (2d Cir.2001) (citing Loudermill, 470 U.S. at 545-46, 105 S.Ct.1487). An Article 78 proceeding “is a perfectly adequate post[-]deprivation remedy.” Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 881 (2d Cir.1996). Because it is well established under New York law that plaintiff has a property interest in Section 207-c benefits and a full post-termination adversarial hearing, in the form of an Article 78 proceeding, was provided to plaintiff, the issue before us is whether plaintiff received “notice and a limited opportunity to be heard prior to termination.” See Locurto, 264 F.3d at 171. Defendants argue that the availability of an adequate state law remedy, the Article 78 proceeding, precludes plaintiff from stating a cause of action under section 1983. (Defs. Mem. Supp. Mot. Dismiss at 3-4.) We agree that this action must be dismissed, but not for this reason. Defendants cite several cases dismissing section 1983 claims because the plaintiffs had adequate remedy in a state post-termination proceeding. (Id. (citing Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393(1984); Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)).) However, these cases dealt with situations in which a property interest was terminated by the arbitrary or unanticipated conduct of a government actor. See Hudson, 468 U.S. at 533, 104 S.Ct.3194 (stating that unauthorized negligent and intentional deprivations of property do not violate the Due Process Clause if pre- deprivation process is impracticable and adequate state post-deprivation remedies are available); Parratt, 451 U.S. at 543, 101 S.Ct. 1908 (finding that inmate whose mail was lost and who brought suit under § 1983 had not alleged a due process violation because his property deprivation did not occur as a result of some established state procedure but because of the unauthorized failure of State agents to follow" }, { "docid": "10447649", "title": "", "text": "him as principal. The Board attempted to rescind their offer based upon allegations of sexual harassment by local education associations without allowing plaintiff to respond to the highly inflammatory charges. The Court finds that Mr. Kirschling should have been afforded notice of the charges and an opportunity to present his side of the case prior to the termination of his employment contract. Defendants, however, assert that the Supreme Court decision in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), defeats plaintiff’s claim that insufficient due process was provided. The Parratt Court held Due Process guarantees not to be implicated in a negligent deprivation of property if adequate post-deprivation remedies exist. Parratt, 451 U.S. at 541-44, 101 S.Ct. at 1916-17. The Court later clarified that where property interests were lost because of an established government procedure rather than the random and unauthorized acts at issue in Parratt, post-deprivation remedies are insufficient. Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36, 102 S.Ct. 1148, 1157-58, 71 L.Ed.2d 265 (1982). In Stana, the Third Circuit examined the holding in Parratt and found that post-deprivation remedies were adequate for violations caused by official negligence, because the government has no way of predicting negligence and holding a hearing prior to commission of a negligent act. Stana, 775 F.2d at 130. However, when “the acts at issue were those of an official in a supervisory position, acting within the area of his authority, the governmental entity [is] in a position to provide some predeprivation process.” Id. (citing Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3203-04, 82 L.Ed.2d 393 (1984)). See also Farris v. Moeckel, 664 F.Supp. 881, 891-92 (D.Del.1987) (if acts forming basis of claim are in furtherance of municipal policy Parratt not applicable). Post-deprivation remedies are inadequate for the termination of an employment offer. Loudermill and Stana require that the Board afford a hearing to Mr. Kirschling prior to withdrawing their offer of employment. The acts of the Board were" } ]

[ { "docid": "9330427", "title": "", "text": "HOUGH, Circuit Judge. The power of reopening estates depends upon section 2, subd. 8, of the Bankruptcy Act. The statute presupposes that estates have been closed, and authorizes the court to “reopen them whenever it appears that they were closed before being fully administered.” We have held in Re Goldman, 129 Fed. 212, 63 C. C. A. 370, that a motion to reopen is “addressed to the sound discretion” of the District Court, and in the same case pointed out that such application should be made by creditors. This must follow from the fact that flic result of a reopening is the election of another trustee —a matter in which creditors alone can act, in the first instance at all events. Proceedings upon petition to reopen need not be of a technical nature nor of any especial formality (Re Newton, 107 Fed. 431, 46 C. C. A. 399); but there must be not only a reasonable prospect of unad-ministered assets, but also evidence of creditors or other parties in interest making the application who would and should be benefited by its success. In this case the action of the lower court is, properly we think, sought to be reviewed by petition to revise; a procedure entitling us to correct its action only in matters of law. As the proceeding is in its nature discretionary, our power to review is limited to considering whether -there was abuse of discretion. The error insisted on is that the order complained of prevented the creation of a new Irustee who might raise the question, in a plenary suit or otherwise, that Graff and Nevins, or one of them, had overlooked, or been guilty of a fraud in concealing, what they or one of them now confessedly has, and so compel its surrender. But this right or duty of a new trustee can be created or invoked only at the instance of a party in interest, to wit (so far as this record shows), a creditor, and it is our opinion that there was, to say the least, ample evidence justifying the court below in" } ]

[ { "docid": "23487047", "title": "", "text": "of all property in the possession of the bankrupt at the time of the adjudication in which he has any interest.. Thenceforth such property is a part of the trust estate in the legal custody of the court for the benefit of the creditors of the bankrupt and adverse claimants. Mueller v. Nugent, 184 U. S. 1-14, 22 Sup. Ct. 269, 46 L. Ed. 405; White v. Schloerb, 178 U. S. 542, 20 Sup. Ct. 1007, 44 L. Ed. 1183; Whitney v. Wenman, 198 U. S. 539, 25 Sup. Ct. 778, 49 L. Ed. 1157; In re Rochford, 124 Fed. 182, 184, 59 C. C. A. 388. 390; In re Granite City Bank, 137 Fed. 818, 821, 70 C. C. A. 316, 319; In re Rodgers, 125 Fed. 169, 60 C. C. A. 567; In re Reynolds (D. C.) 127 Fed. 760, 762;. In re Schermerhorn, 145 Fed. 341, 342, 76 C. C. A. 215, 216. Any willful interference with any of this trust estate, any willful attempt to injure it, to withdraw it from the custody of the court, or to conceal it from the court or any of its officers whose duty it is to administer it, is a defiance of the power and an affront to the dignity of the court which may be punished by a judgment for contempt. In re Walsh Bros. (D. C.) 159 Fed. 560, 562; In re Lutfy (D. C.) 156 Fed. 873, 875; Wartman v. Wartman, 29 Fed. Cas. No. 17,210, pages 303, 304, 305, 306. Indeed, it is an offense under the bankruptcy law punishable by imprisonment for a period not exceeding two years knowingly and fraudulently to receive any. material amount of property from a bankrupt after the filing of a petition with intent to defeat the act. Act July 1, 1898, c. 541, 30 Stat. 554, § 29b, subd. 4 (U. S. Comp. St. 1901, p. 3433). The $40,000 out of which the defendant took the money with which he bought the property the title to which he placed in his name was in the possession of the" }, { "docid": "7625223", "title": "", "text": "brought up for review by petition to revise; while those mentioned in section 48 were brought up by appeal. Now all are brought up by appeal. It is the contention of the appellant that the subject-matter of the present appeal is included under section 48, in the third class, and that therefore the appeal required no allowance by this court. We think this contention cannot he sustained. The claim in the present proceeding was not of the character of those mentioned in 11 USCA § 48(a)(3). The claims there mentioned are claims against the bankrupt or his estate which had their existence prior to the bankruptcy proceedings. The present claim is not of that character. It had no existence prior to the bankruptcy proceedings. It was not a claim for damages against the bankrupt or its estate for breach of contract. It was a claim for use and occupation which arose when the receiver in bankruptcy took possession. It was a claim of the character of costs or expenses of administration, and as such was allowable under 11 USCA § 102. Remington on Bankruptcy (3d Ed.) § 2657; Watkins v. Sedberry, 261 U. S. 571, 575, 43 S. Ct. 411, 67 L. Ed. 802; In re Youdelman-Walsh Foundry Co. (D. C.) 166 F. 381; In re Abrams (D. C.) 200 F. 1005; Louisville, etc., Mills v. Tapp (C. C. A.) 239 F. 463; Gardner v. Gleason (C. C. A.) 259 F. 755; In re Erlich (D. C.) 297 F. 327, 329; In re Plymouth Rubber Co. (C. C. A.) 298 F. 598; In re Chakos (C. C. A.) 24 F.(2d) 482, 486. The determination and allowance of such claims are proceedings in bankruptcy; as such they were reviewable prior to the amendment of 1926 by petition to revise only. W. J. Davidson & Co. v. Friedman (C. C. A.) 140 F. 853; O’Brien v. Ely (C. C. A.) 195 F. 64; Kinkead v. J. Bacon & Sons (C. C. A.) 230 F. 362; In re Pierce, Butler & Pierce Mfg. Co. (C. C. A.) 246 F. 814; Yaryan, etc., Co." }, { "docid": "22990072", "title": "", "text": "court. In the Matter of A. D. Lipman, 57 F.(2d) 1080. Thereafter the receiver filed an amended proof of claim, a hearing was had before the referee, and the claim was allowed. From an order of the District Court confirming the order of the referee allowing the claim, this appeal was taken. The question before us is whether the claim was filed in time and the amendment was properly allowed. Section 57n of the Bankruptcy Act, as amended May 27, 1926, 11 U. S. C. § 93 (n), 11 USCA § 93 (n), provides that: “Claims shall not be proved against a bankrupt estate subsequent to six months after the adjudication. * * * ” It is well settled by decisions of the Supreme Court and lower federal courts that this section does not bar amendments filed after the expiration of the statutory period. Hutchinson v. Otis, 190 U. S. 552, 23 S. Ct. 778, 47 L. Ed. 1179; In re Kessler (C. C. A.) 184 F. 51; In re Faulkner (C. C. A.) 161 F. 900; In re Basha (C. C. A.) 200 F. 951; In re Roeber (C. C. A.) 127 F. 122; Globe Indemnity Co. v. Keeble (C. C. A.) 20 F. (2d) 84; In re Rothert (C. C. A.) 61 F.(2d) 1. The courts have shown great liberality in allowing amendments, and have held that it is not essential that a document be styled a “proof of claim,” or that it be filed in the form of a claim, if it fulfills the purposes for which the filing of proof is required. In re Fant (D. C.) 21 F.(2d) 182; In re Faulkner (C. C. A.) 161 F. 900; In re Salvator Brewing Co. (D. C.) 188 F. 522. Statements in an involuntary petition in bankruptcy (In re Fant, supra) in an application for a court order for the sale of collateral (In re Faulkner, supra), and evidence given upon a hearing to determine the validity of an assignment as against other creditors of the bankrupt (In. re Salvator Brewing Co., supra) have all been held" }, { "docid": "4205039", "title": "", "text": "bankrupt cannot do what he honestly wishes, which is to remedy the effect of his mistake.” He concludes that section 2 of the act confers upon him power to reopen under the facts stated; but that, unless he could allow claims then to be proved, subdivision 8 of that section would be rendered of no effect, and the reopening a mere formality. He resolved this apparent conflict between two sections of the Bankruptcy Act by allowing claims generally to be proved, as an interpretation of what the reasonable intention of Congress must have been. Williams v. Rice, supra, presented an identical situation. The rule announced in the Pierson Case was adopted and the same conclusion reached. But the court in passing had this to say: “Section 57n, limiting the time for proving claims, is intended primarily to require creditors to prove their claims promptly, in order that the estate may be closed without undue delay. If a creditor is negligent, he may not file his claim after the limitation of the statute has run, but 'a new situation arises whenever the bankrupt, although unwittingly, has deceived the creditors, and he is the only one asserting an adverse interest in the assets.” Neither of the Cases last cited support appellant’s position under the facts before us. There are also cases holding that, where the delay in proving claims is caused by the fraud of the bankrupt, in misstating facts in his schedule, and in concealment of assets, the. estate may be reopened, and claims proved beyond the limitation period of the statute, despite objection by the bankrupt. In re Towne et al. (D. C.) 122 F. 313; In re Paine (D. C.) 127 F. 246. Contra, In re Meyer (D. C.) 181 F. 904. However, the language of Judge Swan in Re Silk, supra, has application here: “For present purposes we may lay aside any question of fraud on the part of the bankrupt as an inducing cause of the creditors’ delay in proving their claims. [Citing eases.] In the ease at bar the bankrupt admittedly acted in good faith. Under" }, { "docid": "13309246", "title": "", "text": "adverse to the creditors, after the filing of a petition with notice of it, may be directed to surrender the property thus acquired by summary order of the bankruptcy court. In re Denson, supra; In re Rudnick [& Co. (D. C.) 158 F. 223], supra; and see White v. Schloerb [178 U. S. 542, 20 S. Ct. 1007, 44 L. Ed. 1183], supra. “The rule is the same when a creditor secures payment of his debt from the bankrupt’s estate after the filing of the petition. A summary order may be made directing repayment of the money to the trustee in bankruptcy. Knapp & Spencer Co. v. Drew; In re Leigh; Matter of R. & W. Skirt Co., supra; In re Columbia Shoe Co. (C. C. A.) 289 F. 465. A like rule has been applied where a bank secures payment of its debt by setting up its lien or right of counterclaim against a deposit account of the bankrupt or •flie bankrupt’s assignee, created subsequent to the filing of tbe petition. In re Michaelis & Lindeman (D. C.) 196 F. 718; Reed v. Barnett Nat. Bk., supra. See Farmers’ & Mechanics’ [Nat.] Bank v. Wilkinson, Trustee, 266 U. S. 503, 45 S. Ct. 144, 69 L. Ed. 408. Any other rule would leave the bankruptcy court powerless to deal in an effective way with those holding property for the bankrupt who, pending the bankruptcy proceedings, willfully dispose of it by placing it beyond the reach of the court. Bryan v. Bernheimer, 181 U. S. 188, 196, 21 S. Ct. 557, 45 L. Ed. 814.” The $6,327.07 due under the contract, which was being held by the county of Alameda for tbe account of the bankrupt at the time the petition was filed, came within the constructive possession of the bankruptcy court and subject to its summary jurisdiction. If it were possible to take away that summary jurisdiction by merely turning the property over to one who has a claim against it, the administration of bankrupts’ estates would bo greatly retarded and unduly hampered. The sum of $16,438.58, paid to" }, { "docid": "7834481", "title": "", "text": "estate was closed. It was intended as a statute of repose for litigation between the trustee and third persons. Schreiber’s right to a refund of taxes was in existence when he filed his voluntary petition. Title would have passed to his trustee in bankruptcy under section 70 (11 USCA § 110), had the trustee qualified, as he would have done, had he known of the bankrupt’s claim. Until the appointment and qualification of a trustee, Sehreiber held the claim in trust for his creditors or for the trustee thereafter to take office. Johnson v. Collier, 222 U. S. 538, 32 S. Ct. 104, 56 L. Ed. 306. The proceeds of the claim he must hold upon the same trust. Such proceeds are therefore unadministered assets of the estate, and a proceeding by the trustee to compel the bankrupt to account for them will not be within section lid. Kinder v. Seharff, 231 U. S. 517, 34 S. Ct. 164, 58 L. Ed. 343, upon which the bankrupt rests his entire argument, is not inconsistent with what we have said above. There the trustee was suing a third person to recover property fraudulently conveyed before the bankruptcy.' Mr. Justice Holmes stated the problem there involvéd as follows: “The question is simply whether, when, after an estate is closed, and more than two years later a trustee comes to the conclusion that he undervalued a claim that he knew of and might have sued upon, or finds that the value has risen since, the bankruptcy court may reopen the estate for the sole purpose of getting rid of the statute, and allowing the trustee to sue.” The situation is obviously different here, where no one knew of the existence of the claim until after the estate was closed. The granting or denial of an application to reopen an estate is addressed to the sound discretion of the District Court. In re Goldman (C. C. A. 2) 129 F. 212; In re Graff (C. C. A. 2) 250 F. 997. The order may be made ex parte, without notice to thebánkrupt. In re" }, { "docid": "4336038", "title": "", "text": "creditor ( except the bankrupt himself) may contest the petition for adjudication. This view was intimated in Re Columbia Real Estate Co., 112 F. 643, 647 (C. C. A. 7), but has not generally’ prevailed. In re Meyer, 98 F. 976, 980 (C. C. A. 2), intervention by assignee for benefit of creditors. As to intervention by equity receivers, In re Hudson River El. Power Co., 173 F. 934, 956 (D. C. N. D. N. Y.), affirmed on other grounds (C. C. A. 2) 183 F. 701, 33 L. R. A. (N. S.) 545; In re Morosco Holding Co., 296 F. 516, 520 (D. C. S. D. N. Y.); Blackstone v. Everybody’s Store, 207 F. 752, 756 (C. C. A. 1) ; Struthers Furnace Co. v. Grant, 30 F.(2d) 576 (C. C. A. 6); Wood v. Natural Soda Products Co., 31 F.(2d) 110 (G. C. A. 9). Cf. In re Bankshares Corp., 50 F.(2d) 94 (C. C. A. 2). Assuming, therefore, that it is within the District Court’s power to permit a state court receiver to intervene to contest adjudication, the exercise of such power is clearly discretionary. See Blackstone v. Everybody’s Store, supra. Cf. Gratiot County State Bank v. Johnson, 249 U. S. 246, 250, 39 S. Ct. 263, 63 L. Ed. 587. In the case at har the bankrupt is itself putting up a defense to adjudication; the presence of the receiver appears to be unnecessary and to have resulted largely in a duplication of motions and orders. All the above-cited authorities allowing the receiver to intervene were, with the exception of In re Morosco Holding Co., eases where the bankrupt himself was not contesting adjudication. Under the circumstances of the present case, we see no reason to think that discretion was abused in excluding the receiver from participation. The remaining appeal, No. 186, is from an order entered September 20,1933, denying the receiver’s motion to dismiss the petition in bankruptcy as insufficient upon its face. As appears from the record in No. 187, on September 18th the court had vacated the order authorizing the receiver to intervene." }, { "docid": "21494474", "title": "", "text": "the order which the district court confirmed. This appeal followed. Objection is made to the right of appellants to prosecute this appeal, since they lack legal title to or possession of the moneys in question. We’ think, however, that they may do so. They were parties to the proceeding, for they were named in the trustee’s petition and the order to show cause, they answered the petition on the Trust Company’s failure to do so and contested it below, and they will be foreclosed from any subsequent collateral attack on the turnover order. Obviously they are the real parties in interest, being the only claimants to the moneys if the bankruptcy trustee’s claim does not prevail. Their status thus recognized below is, we think, sufficient interest to justify their appeal. They, in turn, contest the court’s jurisdiction over this matter. But reopening the estate to recover previously unadministered assets was certainly the \"cause shown” required by Bankruptcy Act, § 2, sub. a(8), 11 U.S.C.A. § 11, sub. a(8); In re Newton, 8 Cir., 107 F. 429; and it was not foreclosed by the provision now found in § 11, sub. e, 11 U.S.C.A. § 29, sub. e, limiting the bringing of suits by the trustee to two years. In re Schreiber, 2 Cir., 23 F.2d 428, certiorari denied, Schreiber v. Public Nat. Bank & Trust Co., 277 U.S. 593, 48 S.Ct. 529, 72 L.Ed. 1005. Moreover, this order cannot be attacked in a collateral proceeding. Michaels v. Post, 21 Wall. 398, 88 U.S. 398, 22 L.Ed. 520. Nor is there a more substantial objection to the summary nature of the proceeding and its culmination in a turnover order. The administrator claims on behalf of the bankrupt, not adversely, and did not acquire possession until after the date of bankruptcy. The district court therefore has jurisdiction to require delivery to the trustee. Bankruptcy Act, § 2, sub. a(21), 11 U.S.C.A. § 11, sub. a(21). Although appellants claim adversely, they do not have possession and are not subject to the turnover order. Moreover, they consented to the exercise of jurisdiction herein, and" }, { "docid": "8169099", "title": "", "text": "case is remanded with instructions to vacate the order granting the petition to reoDen. . Bankruptcy Act, § 2 sub. a (8), as amended, 11 U.S.C.A. § 11 sub. a (8). . See 1 Collier, Bankruptcy 265-78 (14th ed.) ; 6 Remington, Bankruptcy §§ 2972-88 (5th ed. 1952). . Saper v. Viviani, 226 F.2d 608 (2d Cir. 1955). . In re Ostermayer, 74 F.Supp. 803 (D.N.J.1947). . The Court of Appeals for the Eighth Circuit has said : “The question as to whether the estate shall be reopened concerns merely the bankrupt and his creditors. Adverse claimants to the bankrupt’s property have no direct interest in that question.” Hunter v. Commerce Trust Co., 55 F.2d 1, 3 (8th Cir. 1932). gee also Rogers v. Bank of America Nat. Trust & Savings Ass’n, 142 F.2d 128 (9th Cir. 1944). This Court has held that an adverse claimant to the bankrupt’s property has no interest such as to permit him to appeal from an order reopening the estate. In re Snyder, 4 F.2d 627, 628 (9th Cir. 1925). . We have suggested that if satisfied of the existence of unadministered assets the bankruptcy court might reopen an estate sua sponte, whatever the source of the information. Schofield v. Moriyama, 24 F.2d 473 (9th Cir. 1928). . Compare In re Kweit, 43 F.Supp. 585 (E.D.N.Y.1942), and In re Forman, 45 F.Supp. 295, 297 (E.D.N.Y.1942), with Corn Exchange Bank Trust Co. v. Empire Trust Co., 206 F.2d 30 (2d Cir. 1953). . Sessions v. Romadka, 145 U.S. 29, 12 S.Ct. 799, 36 L.Ed. 609 (1892). See generally 4 Collier, Bankruptcy 1329-43 (14th ed.) ; 2 Remington, Bankruptcy §§ 1142-48 (1956). . S. E. C. v. United States Realty Co., 310 U.S. 434, 455-56, 60 S.Ct. 1044, 84 L.Ed. 1293 (1940). . Wagner v. Baird, 48 U.S. (7 How.) 234, 258, 12 L.Ed. 681 (1849). See Abraham v. Ordway, 158 U.S. 416, 15 S.Ct. 894, 39 L.Ed. 1036 (1895); Hanner v. Moulton, 138 U.S. 486, 11 S.Ct. 408, 34 L.Ed. 1032 (1891). . “Promptness is an essential feature of any efficient system of bankruptcy.” 3" }, { "docid": "17601140", "title": "", "text": "the property was in the possession of the bankrupt and belonged to the bankrupt at the time the petition in bankruptcy was filed. With the consent of an adverse claimant, a court of bankruptcy may determine in a summary proceeding the validity of an adverse claim. Page, Trustee, v. Arkansas Natural Gas Corporation, 286 U. S. 269, 52 S. Ct. 507, 76 L. Ed. 1096, affirming this court, see 53 F.(2d) 27; MacDonald, Trustee, v. Plymouth County Trust Co., 286 U. S. 263, 52 S. Ct. 505, 76 L. Ed. 1093. When an adverse claimant appears, in response to an order to show cause, and submits the merits of his claim to the referee in bankruptcy in a summary proceeding, without objection to the jurisdiction, lie consents to that form of procedure. First State Bank of Crook, Colo., v. Fox (C. C. A. 8) 10 F.(2d) 116, 118; Jones v. Blair (C. C. A. 4) 242 F. 783, 787; In re Rockford Produce & Sales Co. (C. C. A. 7) 275 F. 811, 814; Operators’ Piano Co. v. First Wise. Trust Co. (C. C. A. 7) 283 F. 904, 905, 906; In re Steuor (D. C.) 104 F. 976, 977; Ryttenberg- v. Schefer (D. C.) 131 F. 313, 317, 318; In re Kornit Mfg. Co. (D. C.) 192 F. 392, 395; 5 Remington, Bankruptcy (3d Ed.) § 2197, p. 287. After the decision of the referee has been rendered, an objection to his jurisdiction comes too late. In re Emrich (D. C.) 10-1 F. 231; In re Hopkins (C. C. A. 2) 229 F. 378, 380; In re Berry (D. C.) 247 F. 700, 705; In re Matthews (D. C.) 109 F. 603. In Page, Trustee, v. Arkansas Natural Gas Corporation, supra, page 271 of 286 U. S., 52 S. Ct. 507, 508, the court said: “It also held that the referee had power to make the ’order, since Lyvers had participated in the litigation without objecting to its summary form until after the order had been made. We think that the judgment should be affirmed,” Another reason why the" }, { "docid": "13309245", "title": "", "text": "filing of the petition is a caveat to all the world and in effect an attachment and an injunction.’ Mueller v. Nugent, supra; Lazarus [Michel & Lazarus] v. Prentice, 234 U. S. 263, 34 S. Ct. 851, 58 L. Ed. 1305; Knapp & Spencer Co. v. Drew, 87 C. C. A. 365, 160 F. 413; In re Denson (D. C.) 195 F. 854; In re Leigh (D. C.) 208 F. 486; Gunther v. Home Ins. Co. et ai. (D. C.) 276 F. 575; Matter of R. & W. Skirt Co. et al., 138 C. C. A. 67, 222 F. 256; Reed v. Barnett Nat. Bank, 163 C. C. A. 233, 250 F. 983; and see Acme Harvester Co. v. Beckman Lum. Co., 222 U. S. 300, 301, 32 S. Ct. 96, 56 L. Ed. 208. See Babbitt v. Dutcher, 216 U. S. 102, 30 S. Ct. 372, 54 L. Ed. 402, 17 Ann. Cas. 969. In consequence, any person acquiring an interest in properly of the bankrupt or his assignees for the benefit of creditors adverse to the creditors, after the filing of a petition with notice of it, may be directed to surrender the property thus acquired by summary order of the bankruptcy court. In re Denson, supra; In re Rudnick [& Co. (D. C.) 158 F. 223], supra; and see White v. Schloerb [178 U. S. 542, 20 S. Ct. 1007, 44 L. Ed. 1183], supra. “The rule is the same when a creditor secures payment of his debt from the bankrupt’s estate after the filing of the petition. A summary order may be made directing repayment of the money to the trustee in bankruptcy. Knapp & Spencer Co. v. Drew; In re Leigh; Matter of R. & W. Skirt Co., supra; In re Columbia Shoe Co. (C. C. A.) 289 F. 465. A like rule has been applied where a bank secures payment of its debt by setting up its lien or right of counterclaim against a deposit account of the bankrupt or •flie bankrupt’s assignee, created subsequent to the filing of tbe petition. In re Michaelis" }, { "docid": "4205040", "title": "", "text": "'a new situation arises whenever the bankrupt, although unwittingly, has deceived the creditors, and he is the only one asserting an adverse interest in the assets.” Neither of the Cases last cited support appellant’s position under the facts before us. There are also cases holding that, where the delay in proving claims is caused by the fraud of the bankrupt, in misstating facts in his schedule, and in concealment of assets, the. estate may be reopened, and claims proved beyond the limitation period of the statute, despite objection by the bankrupt. In re Towne et al. (D. C.) 122 F. 313; In re Paine (D. C.) 127 F. 246. Contra, In re Meyer (D. C.) 181 F. 904. However, the language of Judge Swan in Re Silk, supra, has application here: “For present purposes we may lay aside any question of fraud on the part of the bankrupt as an inducing cause of the creditors’ delay in proving their claims. [Citing eases.] In the ease at bar the bankrupt admittedly acted in good faith. Under such circumstances the statute affords no basis for favoring a creditor merely because he was not negligent. Section 57n (11 USCA § 93 (n) contains no such exception. See In re Sanderson, 160 F. 278 (D. C. Vt.).” In this case there is no contention that the bankrupt acted fraudulently, or with intent to conceal assets, in failing to schedule the insurance policy upon the life of its president. That asset, contingent in nature, and uncertain of realization, may well have escaped notice. A number of decisions in composition eases have been urged in support of appellant’s position. Among them are In re Lane (D. C.) 125 F. 772; In re Atlantic Construction Co. (D. C.) 228 F. 571, 572; and Nassau Smelting & Refining Works v. Brightwood Bronze Foundry Co., 265 U. S. 269, 44 S. Ct. 506, 68 L. Ed. 1013. Section 12a of the Bankruptcy Act provides that “a bankrupt may offer, either before or after adjudication, terms of composition to his creditors,” and further: 12b. “An application for the confirmation of" }, { "docid": "17640420", "title": "", "text": "reviewing the orders and decrees of the courts of bankruptcy is, that ‘controversies’ in bankruptcy proceedings, arising between the trustee representing the bankrupt and his creditors, on tile one side, and adverse claimants on the other, affecting the extent of the estate to be distributed, may be reviewed both as to fact and law; while ‘proceedings’ in bankruptcy affecting merely the administration and distribution of the estate, may be reviewed in matter of law only, except as to the three classes of such ‘proceedings’ enumerated in section 25a [11 USCA § 48 (a)], as to which a short right of appeal is given, both as to fact and law.” Tlio power to reopen an estate which has been closed is granted by section 2! of the Bankruptcy Act (title 11 U. S. C. § 11 [11 USCA § 11]). The court proceeds in a summary way. In re Newton (C. C. A.) 107 F. 429; In re Graff (C. C. A.) 250 F. 997. The question as to whether the estate shall be reopened concerns merely the bankrupt and his creditors. Adverse claimants to the bankrupt’s property have no direct interest in that question. In re Graff, supra. That the property which was claimed to have been omitted from the schedules and concealed from the trustee might be in the hands of an adverse claimant, would not make the question of the further administration of the estate a controversy arising in bankruptcy proceedings. If the estate was reopened and thereafter the trustee engaged in a controversy as to the title or possession of the alleged unadministered property with some person claiming adversely, that would be such a controversy. The questions sought to bo presented here arise out of a “proceeding in bankruptcy.” In re Leigh (C. C. A.) 272 F. 678: In re Graff, supra. Since the appeal was not allowed by this court, there is nothing before us to review. However, we have examined the record and the contentions of the appellant and are of the opinion that, if th'e appeal had been properly taken, this court would be" }, { "docid": "16113255", "title": "", "text": "is no equity therein for Kirby’s general creditors. The lien of plaintiff is one which existed three or more years before the filing of Kirby’s petition in bankruptcy, and is, therefore, one which, under section 107 (d), title 11 USCA (section 67d, Bankrupt Act), is not affected by bankruptcy. Plaintiff (and not Kirby and not defendant, nor the bankruptcy court) being in possession of the stock,’ it may be sold by plaintiff under the provisions of the pledge agreements under section 93h, title 11 USCA (section 57h Bankrupt Act). Hiscock v. Bank, 206 U. S. 28, 27 S. Ct. 681, 51 L. Ed. 945; In re Salmon Weed & Co., Inc. (C. C. A.) 53 F.(2d) 335, 79 A. L. R. 379; In re Hudson River Nav. Corp. (C. C. A.) 57 F.(2d) 175; Jerome v. McCarter, 94 U. S. 734, 24 L. Ed. 136. And the lien of plaintiff being a bona fide ■ substantial adverse claim, and plaintiff having possession of the stock, the bankruptcy court has no jurisdiction (except by consent of plaintiff, which plaintiff has not given) of a summary proceeding against plaintiff to adjudicate the cause of action asserted by defendant in his cross-action herein, or any cause of action. Smith v. Mason, 81 U. S. (14 Wall.) 419, 20 L. Ed. 748; Marshall v. Knox, 83 U. S. (16 Wall.) 551, 21 L. Ed. 481; Eyster v. Gaff, 91 U. S. 521, 23 L. Ed. 403; Bardes v. Bank, 178 U. S. 524, 20 S. Ct. 1000, 44 L. Ed. 1175; Louisville Trust Co. v. Comingor, 184 U. S. 18, 22 S. Ct. 293, 46 L. Ed. 413; First Nat. Bank v. Chicago Title & Trust Co., 198 U. S. 280, 25 S. Ct. 693, 19 L. Ed. 1051; Hiscock v. Bank, supra; Galbraith v. Vallely, 256 U. S. 46, 41 S. Ct. 415, 65 L. Ed. 823. £4, 5] Plaintiff may only be required to respond in a plenary suit. But the bankruptcy court has no jurisdiction of a plenary suit against plaintiff on the cause of action asserted by defendant here, it" }, { "docid": "13482503", "title": "", "text": "sale come into the hands of the bankrupt court for distribution among creditors precisely as if the mortgage had been formally foreclosed.” And see, also, Isaacs v. Hobbs Tie & Timber Co., 282 U. S. 734, 51 S. Ct. 270, 75 L. Ed. 645; Allebach v. Thomas (C. C. A. 4th) 16 F.(2d) 853; Union Electric Co. v. Hubbard (C. C. A. 4th) 242 F. 248; In re King (D. C.) 46 F.(2d) 112; In re Civic Center Realty Co. (D. C.) 26 F.(2d) 825; In re North Star Ice & Coal Co. (D. C.) 252 F. 301; Southern Loan & Trust Co. v. Benbow (D. C.) 96 F. 514; Collier on Bankruptcy (13th Ed.) vol. 2, p. 1758; Remington on Bankruptcy, §§ 2577, 2589; notes 35 A. L. R. 255, 258; 78 A. L. R. 458, 462. Whether the bankruptcy court shall exercise the power to sell incumbered property of the bankrupt free of liens, or sell merely the bankrupt’s equity of redemption subject to the incumbrances, is a matter resting in the sound discretion of the court. Allebach v. Thomas, supra; In re North Star Ice & Coal Co., supra; Sturgiss v. Corbin (C. C. A. 4th) 141 F. 1. But, ordinarily, the power to sell free of liens and thus in effect foreclose the mortgages should not be exercised, unless there is some equity for general creditors or some other benefit to the estate to be derived from this course. The liens of prior mortgages are not affected by bankruptcy; and, where they amount to more than the value of the property, the estate has no interest in their foreclosure, and should not be burdened with the costs and proceedings incident thereto. The rule applicable' was thus stated by this court in Union Electric Co. v. Hubbard, supra, 242 F. 248, 250: “Where the admitted and uncontested liens on any part or portion of the bankrupt estate clearly exceed the value of that property, so as that it is manifest that under no circumstances there can be any fund therefrom to be administered for the unsecured creditors," }, { "docid": "7834478", "title": "", "text": "by the former may be exercised. This position is untenable. Section lid relates to “suits by or against a trustee.” Clearly a creditor’s application to reopen the estate is not such a suit. In re Paine (D. C. Ky.) 127 F. 246. Numerous eases have allowed the estate to be reopened after a much longer period than 2 years. In re Paine, supra, 4 years; Pollack v. Meyer Bros. Drug Co. (C. C. A. 8) 233 F. 861, 5 years; In re Pierson (D. C. S. D. N. Y.) 174 F. 160, 10 years; In re Lighthall (D. C. N. D. N. Y.) 221 F. 791, 12 years. See, also, Bilafsky v. Abraham, 183 Mass. 401, 67 N. E. 318; Duncan v. Watson, 198 Ala. 180, 73 So. 448; Remington, Bankruptcy (3d Ed.) § 2971 et seq. Neither decision nor text-writer, so far as we have been able to discover, has over suggested that the court’s power to reopen is subject to the 2-year limitation for which the bankrupt now contends. Section lid can have no possible bearing on the reopening of an estate, where unadministered assets are in hand or are obtainable without suit. If the United States, instead of paying the tax refund to Schreiber himself, had paid it to his former trustee in bankruptcy, no one could doubt the power of the court to reopen the proceedings for the purpose of administering this sum. The notion which underlies the bankrupt’s argument is really that section lid bars any proceeding which the trustee hereafter to be elected may bring to compel the bankrupt to account, and therefore there is no unadministered asset, without which the reopen ing of an estate is not only futile, but unauthorized. It would seem to be a sufficient answer to reply' that tbe defense of the 2-, year limitation should be raised in the proceeding which the trustee may hereafter bring, rather than by motion to vacate the order reopening the estate. But we are willing to discuss the question upon broader ground. Even if it be assumed arguendo— an assumption contrary to" }, { "docid": "7957804", "title": "", "text": "clearly approved. It is not now apparent that, in November of 1930, it was obvious that the real estate corporations would default upon their obligations, thus rendering inevitable recourse to the endorsers. It is \"by no means clear, therefore, that a trustee would be successful in litigation having for its object the bringing into the bankrupt estates of the stock issued to the respective wives. The circumstances are thus to be distinguished from those in such a case as Tuffy v. Nichols, 2 Cir., 120 F.2d 906, in which a bankrupt estate was reopened so that a trustee might administer for the benefit of creditors a remainder interest which became vested in the bankrupt after the filing of her voluntary petition. Cómparable cases to that are: In re Pierson, supra; In re Lighthall, D.C., 221 F. 791, and In re Schreiber, 2 Cir., 23 F.2d 428. If there were a showing here of property actually owned by the bankrupt which, through mistake or other circumstance, or concealment, should be administered for the benefit of creditors, a different disposition would be appropriate, but all that these papers reveal is the possibility of litigation which might or might not be successful, and which would certainly involve preparation on both sides much more difficult in 1942, than would have been true in 1934, when the bankruptcy proceedings were closed. In the language of Judge Hough in Re Graff, 250 F. 997, at page 999: “Proceedings upon petition to reopen need not be of a technical nature nor of any especial formality (Re Newton, [8 Cir.], 107 F. [429], 431, 46 C.C.A. 399); but there must be not only a reasonable prospect of unadministered assets, but also evidence of cred itors or other parties in interest making the application who would and should be benefited by its success.” It is not mere lapse of time which stands in the way of granting this motion, but the lack of appeal to the equitable instincts of the bankruptcy jurisdiction. If the Bank had chosen wilfully to ignore the professed necessity for inquiry for over seven years," }, { "docid": "15639374", "title": "", "text": "of equity in the sense that ‘its judge and referees, in adjudging the rights of parties entitled to their decision, are governed by the principles and rules of equity jurisprudence,’ is beyond question. Larson et al. v. First State Bank of Vienna, S. D., et al. (C. C. A. 8) 21 F.(2d) 936; In re Rochford (C. C. A. 8) 124 F. 182; In re Ben Boldt, Jr., Floral Co. (C. C. A. 10) 37 F.(2d) 499. It has not, however, plenary jurisdiction in equity, but is confined, in the application of the rules. and principles of equity, to the jurisdiction conferred upon it by the provisions of the Bankruptcy Act, reasonably interpreted. Johnson v. Norris (C. C. A. 5) 190 P. 459, L. R. A. 1915B, 884; In re Kane (C. C. A.) 127 P. 552. The plain mandate of the law cannot be set aside because of considerations which may appeal to referee or judge as falling within general principles of equity jurisprudence.” In this ease it is plain that the Southern Bell Company had no lien upon any specific property of the bankrupt, nor upon the bankrupt’s general estate resulting from any express or implied provision of the contract under which the services were rendered. No statute of a state or the United States accorded such a lien or priority, and there is no power vested in the bankruptcy court to order preferential payments because “of considerations which may appeal to referee, or judge as falling within general principles of equity jurisprudence.” Section 64b of the Bankruptcy Act, section 104 (b), title 11, USCA; section 107 (b), title 11, USCA. It is conceded that there is no decision in bankruptcy affording any support to the appellant’s claim of priority. The equity foreclosure eases like Miltenberger v. Logansport R. Co., 106 U. S. 308,1 S. Ct. 140, 27 L. Ed. 117; Kneeland v. American Loan & Trust Co., 136 U. S. 89, 10 S. Ct. 950, 34 L. Ed. 379; Southern Ry. Co. v. Carnegie Steel Co., 176 U. S. 257, 20 S. Ct. 347, 44 L. Ed." }, { "docid": "17640419", "title": "", "text": "v. Burden, 228 U. S. 161, 365., 33 S. Ct. 491, 57 L. Ed. 780. On the other hand, the ‘proceedings’ in bankruptcy referred to in section 24b [11 USCA § 47 (b) ] aro those matters of an administrative character, including questions between the bankrupt and his creditors, which are presented in the ordinary course of the administration of the bankrupt’s estate. Matter of Loving, 224 U. S. 183, 189, 32 S. Ct. 446, 56 L. Ed. 725. In such administrative matters — as to which the courts of bankruptcy proceed in a summary way in the final settlement and distribution of the estate, U. S. Fidelity Co. v. Bray, 225 U. S. 205, 218, 32 S. Ct. 620, 56 L. Ed. 1055 — their orders and decrees may be reviewed by petitions for revision which bring up questions of law only. Duryea Power Co. v. Sternbergh, supra, 302 of 218 U. S., 31 S. Ct. 25, 54 L. Ed. 1047. It thus appears that the essential distinction between the different methods provided for reviewing the orders and decrees of the courts of bankruptcy is, that ‘controversies’ in bankruptcy proceedings, arising between the trustee representing the bankrupt and his creditors, on tile one side, and adverse claimants on the other, affecting the extent of the estate to be distributed, may be reviewed both as to fact and law; while ‘proceedings’ in bankruptcy affecting merely the administration and distribution of the estate, may be reviewed in matter of law only, except as to the three classes of such ‘proceedings’ enumerated in section 25a [11 USCA § 48 (a)], as to which a short right of appeal is given, both as to fact and law.” Tlio power to reopen an estate which has been closed is granted by section 2! of the Bankruptcy Act (title 11 U. S. C. § 11 [11 USCA § 11]). The court proceeds in a summary way. In re Newton (C. C. A.) 107 F. 429; In re Graff (C. C. A.) 250 F. 997. The question as to whether the estate shall be reopened concerns" }, { "docid": "7834477", "title": "", "text": "of his claim against the government after the estate had been closed, succeeded in 1926 in obtaining a sum in excess of $100,000 as a refund of taxes paid for the years 1918 and 1919; and that he has used “nearly all” of this money to pay certain of his former creditors “to whom he considered himself under moral obligation.” He now objects to the reopening of the bankruptcy proceedings, and to being questioned and perhaps required to account for this money. Section 2 (8) of the Bankruptcy Act (11 USCA § 11) invests courts of bankruptcy with jurisdiction to “close estates, whenever it appears that they have been fully administered, * * * and reopen them whenever it appears that they were closed before being fully administered.” Section lid (11 USCA § 29) provides that “suits shall not be brought by or against a trustee of a bankrupt estate subsequent to two years after the estate has been closed.” The bankrupt contends that the latter section limits the time within which the power conferred by the former may be exercised. This position is untenable. Section lid relates to “suits by or against a trustee.” Clearly a creditor’s application to reopen the estate is not such a suit. In re Paine (D. C. Ky.) 127 F. 246. Numerous eases have allowed the estate to be reopened after a much longer period than 2 years. In re Paine, supra, 4 years; Pollack v. Meyer Bros. Drug Co. (C. C. A. 8) 233 F. 861, 5 years; In re Pierson (D. C. S. D. N. Y.) 174 F. 160, 10 years; In re Lighthall (D. C. N. D. N. Y.) 221 F. 791, 12 years. See, also, Bilafsky v. Abraham, 183 Mass. 401, 67 N. E. 318; Duncan v. Watson, 198 Ala. 180, 73 So. 448; Remington, Bankruptcy (3d Ed.) § 2971 et seq. Neither decision nor text-writer, so far as we have been able to discover, has over suggested that the court’s power to reopen is subject to the 2-year limitation for which the bankrupt now contends. Section lid can have" } ]

[ { "docid": "2923341", "title": "", "text": "which we are bound to accept, unless clearly erroneous. Fed.R.Civ.P. 52(a), 28 U.S.C. We cannot say that the trial judge, who was in a position to weigh the evidence and observe the witnesses, was clearly erroneous on this record. Aside from this, however, we do not perceive that this finding would be determinative in any case, for we rest our conclusion on the fact that the functions in question were private dinner parties which were not taxable. Only when the parties ended and the patrons became part of the general public did the receipts become taxable, simply because after that point these patrons were no different from those in the Main Room, except that they were sitting in a different portion of the club. The argument of the government that the presumption of correctness attending the Commissioner’s determination was not overcome is inapplicable to a situation such as we have here. It is well settled law that this presumption may be rebutted by a showing that the Commissioner’s determination is arbitrary or erroneous. Helvering v. Taylor, 1935, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623; Greenwood v. Com’r, 9 Cir., 1943, 134 F.2d 915. Here the government assessment was based on an erroneous view of the law, which, when rejected by the district court judge, necessarily fell of its own weight. The taxpayer does not have to produce evidence in order to overcome the presumption when he has succeeded in showing that the assessment was erroneous because based on an er-roneous view of the law. Clinton Cotton Mills, Inc. v. Com’r, 4 Cir., 1935, 78 F.2d 292, 295. Furthermore, he does not have to show what the correct tax should have been. Helvering v. Taylor, supra. III. We pass to a consideration of the so-called “closed house” parties. The government’s argument that the proceeds of these parties should be taxable is based entirely on the Special Ruling issued by the Commissioner of Internal Revenue in August 1949, quoted in note 2, supra. There are many reasons why this regulation, which is based on what the taxpayer calls a “fantastic" } ]

[ { "docid": "771742", "title": "", "text": "is of his own making.” As a factual problem we are of opinion that the decision of the Tax Court is supported by the evidence and the reasonable inferences that may properly be drawn therefrom and-must be sustained unless there be some error of law as urged by petitioners which requires another result. Petitioners complain that the Tax Court left upon them the burden of establishing error in respondent’s determination of deficiencies and additions. That the Tax Court applied a correct principle of law in so doing is shown by applicable authorities. The Tax Court did not misapply this principle. It relied upon the presumption of correctness of the Commissioner’s determination only with relation to the area in which Mrs. Prokop had failed to keep records' when it was her duty to keep them and in which she had participated in rendering unavailable records that were kept. Since she failed to produce any evidence of incorrectness on the part of the Commissioner’s determinations outside of her own unsupported testimony which the trial judge believed to be unreliable and incredible and since the record failed to show any evidence of incorrectness it cannot be said that it was error for the Tax Court to find that no evidence had been produced that served to overcome the presumption of correctness that supports the assessments made by the Commissioner until overcome by credible proof. 47 C.J.S. Internal Revenue § 709 a, pages 936-937, and cases cited in Footnotes 45 and 46; Viles v. Commissioner of Internal Revenue, 6 Cir., 233 F.2d 376, 379; Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150. The assessments by the Commissioner were properly based upon the reports of the responsible revenue agents and under the law were entitled to a presumption of correctness until overcome by credible proof. As a matter of fact, the record contains evidence which clearly tends to support the conclusion that the total amount of unrecorded fees received by Mrs. Prokop was more than the total determined by the Commissioner. The number of permit holders, their average wage and" }, { "docid": "2647643", "title": "", "text": "the later period of time when the agent made his computations. The record is inadequate for this Court to determine what is the precise percentage formula by which the Cabaret Tax can be accurately computed. However, the plaintiffs conceded that their test conducted over a longer period of time disclosed a percentage of gross receipts of approximately 26%. This it would seem, amounts to the admission that the 9% of gross receipts on which Cabaret Tax was actually paid was an inadequate amount. Therefore, it is my conclusion that the proper tax due by the plaintiffs should be computed by the formula of 26% of the gross receipts of the activity that comes within the contemplation of the Cabaret Tax Statute. No other method of determination has been suggested. I am aware of the presumption of correctness raised by the Commissioner’s determination, but the evidence is such that in my opinion that presumption is overcome and we are left with no proof better than the test made by the taxpayers discussed earlier. It is suggested that counsel submit findings of fact and conclusions of law in accordance with the views expressed herein." }, { "docid": "2288705", "title": "", "text": "do it entirely on my own. I talked to Mr. Wood; I talked to Mr. Ross, but they did not see my figures that I used. “Q. Well, did they suggest the percentages that you used, the ratios ? A. No, sir. I merely drew those ratios from — my ratios were effected by my conversations with them. “Q. In other words, you were not arbitrary — or, were you arbitrary, Mr. Nichols, in arriving at your amount? “Mr. McGregor: I object to that. “The Court: He may answer for whatever it may be worth. “A. I wouldn’t answer that. “By Mr. Maxwell: Q. My point was that you did talk to these people ? A. Oh, yes. I am not saying that this cost of land is the correct cost. This is as near as I can determine.” An examination of the entire record has failed to dispel our doubts as to the correctness of the agent’s determination of the taxpayers’ 1946 gross income. Without further particularization, the doubt is accented by the admission of the agent that his land cost figures may not be correct and his refusal to say whether or not his ratio basis for determining costs was arbitrary. We think the Commissioner failed to carry the burden of proving that Section 275(c) was applicable for the year 1946. As to the years 1947, 1948 and 1949, we have no statute of limitation questions. If the Commissioner was acting within the scope of his discretionary power under Section 41, and we hold that he was, there is a presumption of correctness attaching to his determinations. Archer v. Commissioner of Internal Revenue, 5 Cir., 1955, 227 F.2d 270. The decision of the Tax Court is not shown to be clearly erroneous as to these years. See Goldberg v. Commissioner of Internal Revenue, 5 Cir., 1956, 239 F.2d 316. The Tax Court agreed with the Commissioner that the costs of roads in the Florida land development should be capitalized rather than treated as a deductible business expense. The taxpayers’ construction of roads was for the purpose of providing" }, { "docid": "3657491", "title": "", "text": "with the IRS (and the Tax Court decision) is about whether they or some other entity actually earned the income in question. The Coles’ 2001 joint tax return reported adjusted gross income of $100,276, taxable income of $18,265, and a tax liability of $505. Yet, the Coles have produced no records supporting these figures. The evidence presented to the Tax Court showed that the Coles actually made a tremendous amount of money in 2001 that they did not report on their 2001 joint return. Scott, via his representation of the Sandefur Trust and others, helped the Bentley Group earn $1,430,802 in taxable deposits in 2001 as determined by the IRS and found by the Tax Court. Scott also made a decent amount of money independent of the Bentley Group as documented by the $79,652 in taxable deposits in JAC’s bank account, all from Scott’s legal services. Yet Scott only reported self-employment tax on $1,162 of income for a self-employment tax liability of $164. The Coles do not directly challenge the presumption of correctness granted the Commissioner’s deficiency assessment or our clearly erroneous standard for reviewing the Tax Court’s factual findings. Internal Revenue Code section 6001 requires taxpayers to “keep such records, render such statements, make such returns, and comply with such rules and regulations” as required by the Commissioner. When a taxpayer fails to regularly use an accounting method, “or if the method used does not clearly reflect income,” I.R.C. § 446(b) allows the Commissioner to determine taxable income via a method that in its discretion “does clearly reflect income.” See Webb v. Comm’r, 394 F.2d 366, 371-72 (5th Cir.1968) (holding that because a taxpayer’s “records did not clearly reflect his income, the Commissioner was authorized to use such methods as in his opinion clearly reflected that income” (citing 26 U.S.C. § 446(b)); Factor v. Comm’r, 281 F.2d 100, 117 (9th Cir.1960) (holding that an “undisputed rule is that, because of the failure of the taxpayer to keep books clear ly reflecting his income, the Commissioner had the right to compute the income” using a method the Commissioner believes accurately" }, { "docid": "17555619", "title": "", "text": "records to show actually when the distributions were made. It is true that when no such records are produced, the Commissioner and the tax court can base their determination on such evidence and with such methods as the circumstances afford. Union Stock Farms v. Commissioner, supra; Baumgardner v. Commissioner, supra, 251 F.2d at pages 313-314; Roberts v. Commissioner, 9 Cir., 1948, 176 F.2d 221, 226, 10 A.L.R. 2d 186; Cohan v. Commissioner, supra, 39 F.2d at pages 544, 545. But when reliable records are available they must be used in making the determination to the extent they reveal the necessary information. Here the Commissioner and the tax court chose to completely ignore the fact that the records which supported their determinations of unreported income also in many instances revealed the exact day on which unreported sales were made, when personal expenses of shareholders were paid by the corporation, when unreported sales were completed, and when substituted deposits were made. There is no indication that the agent or the tax court took these factors into consideration in allocating distributions from the fiscal years of the corporation to the calendar year of the taxpayers, even though the agent’s report compiles much of the information from the records which were apparently available at the time of the trial. True, the report was not introduced in evidence for the purpose of showing the truth of these figures. It was, however, introduced to show the basis of the Commissioner’s determination of the deficiencies. A correct analysis of the report overcomes the presumption of correctness as to the Commissioner’s allocation for fiscal 1947. The only explanation of the Commissioner’s percentage basis of allocation appears in the testimony of the revenue agent, which we set forth below. The tax court further justified the fiscal 1947 allocation on the grounds that the petitioners, as a basis for challenging the allocation, failed to make a motion requiring the Commissioner “to file a further and better statement” under Rule 17(c)(1) of the Tax Court, Rules of Practice. But failure to request the better statement under this Rule in no way" }, { "docid": "6117704", "title": "", "text": "cent accurate has no standing to challenge or question a deficiency notice, however arbitrary. Nothing in the prior case law justifies a holding that the maintenance of perfect account books is a prerequisite to the taxpayer’s right to challenge the arbitrariness of a deficiency notice. In my opinion a court should not reach the question of the quality of a taxpayer’s books if the taxpayer asserts and demonstrates that the Commissioner’s deficiency is arbitrary. As the Sixth Circuit said in Durkee v. Commissioner of Internal Revenue, 162 F.2d 184, 187, 173 A.L.R. 553(6th Cir. 1947): “But where it is apparent from the record that the Commissioner’s determination is arbitrary and excessive, the taxpayer is not required to establish the correct amount that lawfully might be charged against him, and he is not required to pay a tax that he obviously does not owe. In proceedings before the Tax Court * * it is sufficient to show that the Commissioner’s determination is invalid. Upon such a showing the case should be remanded to the Tax Court for further hearings on the point involved.” Such an approach should be followed here. In the instant case, the Commissioner had an opportunity to offer evidence as to the basis, if any, of his deficiency assessment. Agent George Mowdry, who conducted the special income tax investigation into the Barnes’ tax matter, was never called to the stand by the Commissioner to explain how the deficiency had been computed. In reality the Tax Court by casting doubt on the reliability of the taxpayers' evidence ruled that they had produced no evidence at all. This conclusion was unwarranted. Once competent evidence is proffered which indicates the incompleteness or arbitrariness of the deficiency notice, the presumption of correctness disappears regardless of the absolute reliability of the taxpayer’s evidence. At this point the production burden shifts back to the Commissioner to show how he arrived at his determination. The Commissioner cannot avoid his burden by merely discrediting the taxpayer’s evidence. In an analogous factual situation, this court said: “The disbelief of * * * testimony [of the witness] cannot" }, { "docid": "6117703", "title": "", "text": "the introduction of their books and records to establish the fact not only that they owed no additional tax, but also to demonstrate that the Commissioner’s deficiency notice had no ascertainable empirical basis. The Commissioner offered no evidence to rebut the taxpayers’ contention. In effect, what the taxpayers sought to do was to elicit from the Commissioner precisely what costs of operation he concluded they had erroneously included in their tax computations. The taxpayers’ request to know what cost items were being disallowed was surely reasonable. Nonetheless, the Tax Court disregarded the taxpayers’ attack on the deficiency notice and invoked the correctness presumption on the ground that the taxpayers had failed to show that their books and records accurately reflected the ticket agency’s cost of operation. Likewise, this court holds that because the taxpayers’ books were not suitable to disprove all the Commissioner’s theories of cost and taxation, the taxpayers cannot attack the arbitrariness of the Commissioner’s deficiency notice. This approach is tantamount to saying that a taxpayer whose books are not one hundred per cent accurate has no standing to challenge or question a deficiency notice, however arbitrary. Nothing in the prior case law justifies a holding that the maintenance of perfect account books is a prerequisite to the taxpayer’s right to challenge the arbitrariness of a deficiency notice. In my opinion a court should not reach the question of the quality of a taxpayer’s books if the taxpayer asserts and demonstrates that the Commissioner’s deficiency is arbitrary. As the Sixth Circuit said in Durkee v. Commissioner of Internal Revenue, 162 F.2d 184, 187, 173 A.L.R. 553(6th Cir. 1947): “But where it is apparent from the record that the Commissioner’s determination is arbitrary and excessive, the taxpayer is not required to establish the correct amount that lawfully might be charged against him, and he is not required to pay a tax that he obviously does not owe. In proceedings before the Tax Court * * it is sufficient to show that the Commissioner’s determination is invalid. Upon such a showing the case should be remanded to the Tax Court" }, { "docid": "16777043", "title": "", "text": "placing the burden of producing evidence to rebut that presumption squarely on the taxpayer. Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623 (1935); Anastasato v. Commissioner, 794 F.2d 884, 886 (3d Cir.1986). Resyn first argues that the method of computation adopted by the I.R.S. in determining Resyn’s tax deficiencies was arbitrary and clearly erroneous. The burden of proving that an assessment is arbitrary and excessive rests on the taxpayer; if the taxpayer cannot prove that the assessment was arbitrary, it retains the burden of overcoming the presumption in favor of the government that the assessment was not erroneous. Demkowitcz v. Commissioner, 551 F.2d 929 (3d Cir.1977); Gerardo v. C.I.R., 552 F.2d 549, 552-53 (3d Cir.1977). However, once the taxpayer has sustained its burden of proving that the assessment is arbitrary and excessive, i.e., that it lacks a rational foundation in fact and is based upon unsupported assertions, the ultimate burden of proving that the assessment is indeed correct is placed on the government. Baird v. Commissioner, 438 F.2d 490, 492 (3d Cir.1971). Thus in this case Resyn, claiming that the assessment was arbitrary and excessive, argues that it is the government that bears the burden of proving that its assessment was correct. A. Was the Assessment Arbitrary? Resyn contends that the deficiencies assessed in this case were arbitrary and excessive because the I.R.S. agent who computed the deficiency utilized the wrong computational method. Thus, Resyn maintains that no presumption arises in favor of the Commissioner. The government responds by arguing that Resyn failed to make any showing that the assessment was arbitrary and excessive and that, therefore, the burden was properly placed on Resyn to prove that the assessment was inaccurate. We agree. Resyn did not dispute that it was involved in a scheme to create an impression of lower revenue earning during the years 1963 through 1969. See App. at 731. Moreover, the checks that were deposited in Chemical Trader’s account and the Re-syn checks that were deposited in the Polymer account provide a means of calculating the amount of money illegally diverted from Resyn’s" }, { "docid": "6019874", "title": "", "text": "F.2d 549, 553 (3d Cir.1977). Adamson contends that even if the records were his, the government failed to prove that they reflected transactions for the year of 1979. The argument is unpersuasive. The records were seized in January 1980, and the monthly notations on those records were to October, November and December. Those months had not yet transpired in 1980. It was reasonable for the Tax Court to infer that the months related to the most recent months of October, November and December. B. Rational Foundation for Determination of Amount of Taxable Income Once the government has carried its initial burden of introducing “some substantive evidence” to link the taxpayer with the income-producing activity, see Edwards v. Commissioner, 680 F.2d 1268, 1270 (9th Cir.1982) (per curiam), the burden shifts to the taxpayer to prove that the Commissioner’s assessment is arbitrary or erroneous. Helvering v. Taylor, 293 U.S. 507, 515, 55 S.Ct. 287, 290, 79 L.Ed. 623 (1935); United States v. Stonehill, 702 F.2d at 1294. If the taxpayer successfully rebuts the presumption that the assessment is correct, the presumption disappears, and the burden of proving the deficiency reverts to the government. Stonehill, 702 F.2d at 1294. The Tax Court held that the government met its initial burden linking Adamson to drug dealing, and that therefore the presumption of correctness attached. Adamson claims that the calculations of the IRS agent were so incomplete and erroneous that no weight should be attached to them. It is true that the agent testified that he was assuming that the figures listed in the records seized in the hotel room represented U.S. dollars, and that they represented gross receipts, expenses, and various totals of net income. He also acknowledged that he had failed to check the mathematical computations that he had made, and that on certain points he was wrong. Adamson argues that because of these assumptions, mathematical errors, and the lack of any specific analysis such as a net worth analysis, the calculations cannot serve as a rational basis for the deficiency assessment. We note first that the government conceded that the IRS agent" }, { "docid": "16451672", "title": "", "text": "had died, and none of the other sources testified; thus Starr’s statements were hearsay inadmissible to show the truth of the matters asserted. The Tax Court admitted the testimony only to support the reasonableness of Starr’s actions. The Tax Court then denied the motion to shift the burden. Avery now argues that Judge Hall, in her decision, impermissibly used this evidence as substantive support for the Commissioner’s action. This argument is incorrect. The court cited the testimony only to show that Avery had not proved the Commissioner’s determination to be arbitrary and capricious. This use of the testimony was consistent with its limited admission on the motion to shift the burden of proof, as the issue on that motion was the same. Avery’s other contentions depend on her argument that the Commissioner had no basis for extrapolating the conceded sales to the agent to estimated total sales of $60,000 for the three-month period. The agent testified that when he bought the heroin the first time Avery said she hoped to see him often, and that at a later purchase she told him that she had thought she would see him more. These statements certainly indicated that she was conducting a heroin business rather than simply accommodating the agent. It was also clear that Avery made several expensive purchases about this time, using large quantities of cash for the purpose. In their testimony, Avery and her boyfriend gave other explanations for these events, but the judge refused to credit their statements, and we see no reason to question the court’s judgment. Demkowicz v. Commissioner, 551 F.2d 929 (3d Cir. 1977), is cited by the taxpayer. While it supports the truism that the testimony of the taxpayer can overcome the Commissioner’s presumption of correctness, the case also points out that the court need not believe the testimony. The Commissioner’s estimate of the extent of Avery’s sales may be inaccurate, but it is rationally based and presumptively correct. Since she failed to present evidence to overcome the presumption, the Commissioner’s determination must stand. Affirmed." }, { "docid": "12778708", "title": "", "text": "in excess of $7,000.00 — for a year in which he reported only $1,190.15 taxable income. The presumption of correctness attributed to the Commissioner’s deficiency determinations does not apply to the findings of fraud. Steiner v. Commissioner of Internal Revenue, 350 F.2d 217, 224 (7th Cir. 1965); Mensik v. Commissioner of Internal Revenue, 328 F.2d 147, 150 (7th Cir.), cert. denied, 379 U.S. 827, 85 S.Ct. 55, 13 L.Ed.2d 37 (1964). This is a question of faet which the Commissioner had to establish by clear and convincing proof, Steiner v. Commissioner of Internal Revenue, 350 F.2d at 220, but the Tax Court’s finding that taxpayer’s returns were false and fraudulent with intent to evade the tax, and that part of the deficiency or underpayment for each year was due to this fraud, decides this question and is not to be set aside unless clearly erroneous. Mensik v. Commissioner of Internal Revenue, 328 F.2d at 150; Teitelbaum v. Commissioner of Internal Revenue, 294 F.2d 541, 547 (7th Cir. 1961), cert. denied, 368 U.S. 987, 82 S.Ct. 603, 7 L.Ed.2d 525 (1962). The opinion recited what the evidence showed: consistent and sizable understatements of income, twice or more the amount of taxable income reported; that the taxpayer dealt largely in cash and made capital purchases, to a large extent (about $100,000.00), in cash; that receipt books which would reflect business income were unavailable to the Commissioner, having been “allegedly” destroyed by fire in December, 1959, and that other available records for the years 1954-57 agreed with returns filed; and that taxpayer made misstatements to agents about the number of loans he had made “to hide assets or true net worth.” The inferences drawn from the facts recited were that the dealing in cash and the “hiding” of records was done to cover up true taxable income; that taxpayer did not show records of cash purchases of machines to agents investigating his affairs; that the alleged destruction of the receipt books in 1959 does not explain taxpayer’s earlier failure to show the records to the investigating agents; that the consistent and substantial understatement" }, { "docid": "23481345", "title": "", "text": "regard it as settled that the prima facie presumption which attends the determinations of the commissioner is based upon a principle the exact contrary of this. This principle is that he has acted fairly and reasonably in making his determinations and is prepared to support them with evidence if credible evidence that they are incorrect, is offered. Acting in this case in accordance with the guiding influence of the correct principle, instead of blindly following the determinations of the commissioner, the Tax Court in the main, after a painstaking and searching consideration of the record as a whole, accepted some and rejected others of his determinations, basing its findings on its view of the state of the evidence. Because it did so, I agree with the majority, except as to the two matters referred to above and hereafter briefly discussed, that its finding and conclusions are not clearly erroneous and should be affirmed. Upon the first question, the value of the security deeds, I am of the firm opinion that the majority, in stating on page 246 of 250 F.2d that “It was not arbitrary for the agents to consider as worth face value notes which the taxpayer had exacted when he sold the various parcels of real estate”, acted upon a patently unsound premise. I am of the equally firm opinion that the Tax Court gravely erred when, without any testimony to the contrary and in the face of the testimony of all the witnesses as to their value, though conceding that the commissioner had erroneously determined that their fair market value was their face, it reached up into the air to pluck a figure down to which no one testified and which a mere reading of the record will show is not only unsup ported by, but is contrary to, all of the testimony. It will serve no useful purpose for me to set out this testimony. It is sufficient to say: that the statements in the brief of the petitioner as to the state of the evidence are completely accurate, that neither the brief of the taxpayer," }, { "docid": "13217562", "title": "", "text": "overcome by proof to the contrary, that it was made upon sufficient evidence and was in all respects correct. Before you can disregard a determination of the Commissioner, you must be convinced by a preponderance of the evidence that the Commissioner acted in a manner unjust to plaintiffs and unwarranted by the actual facts. Such determination and any assessment made pursuant thereto is prima facie evidence of the resulting tax liabilities, and prima facie evidence is such evidence as is sufficient when unassailed to establish a given fact, and it remains sufficient for that purpose until it is rebutted and overcome by competent evidence. “The Government’s determination •of tax liability, as stated, is presumed to be correct and this presumption is effective until the taxpayer introduces evidence of the invalidity of the determination. Therefore, if you find from a preponderance of the evidence that the Government’s actions and its computations upon which the assessment is based are arbitrary and excessive then the assessment is not entitled to treatment as presumptively correct. Thus, in this case, if you find from a preponderance of the evidence that the Government’s computation of the tax here imposed was arbitrary and excessive, then I instruct you that the Government’s assessment loses its presumptive correctness. “Instruction No. 9. “The plaintiff must not only show by a preponderance of the evidence that the findings upon which the Commissioner’s assessment is based are erroneous, but he must go further and establish the allegations alleged in his complaint. In other words, not only must the plaintiff prove that the Commissioner was wrong, but he must also prove that the plaintiff was right. The plaintiff in such a case must show the facts from which the amount of tax, if any, due him can be computed. Neither the court nor the jury is permitted to speculate upon how much of the tax, if any, was erroneously assessed and collected. Therefore, if you find that the plaintiff has failed to prove by a preponderance of the evidence the correct amount of tax due, then you will find for the defendant and" }, { "docid": "6117705", "title": "", "text": "for further hearings on the point involved.” Such an approach should be followed here. In the instant case, the Commissioner had an opportunity to offer evidence as to the basis, if any, of his deficiency assessment. Agent George Mowdry, who conducted the special income tax investigation into the Barnes’ tax matter, was never called to the stand by the Commissioner to explain how the deficiency had been computed. In reality the Tax Court by casting doubt on the reliability of the taxpayers' evidence ruled that they had produced no evidence at all. This conclusion was unwarranted. Once competent evidence is proffered which indicates the incompleteness or arbitrariness of the deficiency notice, the presumption of correctness disappears regardless of the absolute reliability of the taxpayer’s evidence. At this point the production burden shifts back to the Commissioner to show how he arrived at his determination. The Commissioner cannot avoid his burden by merely discrediting the taxpayer’s evidence. In an analogous factual situation, this court said: “The disbelief of * * * testimony [of the witness] cannot support an affirmative finding that the reverse of his testimony is true, that is, it cannot supply a want of proof.” Bankers Life and Casualty Co. v. Guarantee Reserve Life Ins. Co., 365 F.2d 28, 34 (7th Cir. 1966), cert. denied, 386 U.S. 913, 87 S.Ct. 862, 17 L.Ed.2d 785 (1967). Similarly here, it does not follow that because the taxpayers’ books cannot disprove the theory of taxation selected by the Commissioner, the Commissioner’s assessment is correct and cannot be shown to be arbitrary. Additionally, I am concerned with what the majority’s decision might permit the Commissioner to do with future taxpayers. If the Commissioner knows that a particular taxpayer’s books and records are not any more accurate or all encompassing than those kept by the Barnes’ ticket agency, as a result of our decision, there is nothing to prevent the Commissioner from selecting an arbitrary figure, putting it in a tax deficiency notice, and then proceeding to enforce the deficiency. Our decision would allow the Commissioner to prevail, despite the completely arbitrary nature of" }, { "docid": "771743", "title": "", "text": "be unreliable and incredible and since the record failed to show any evidence of incorrectness it cannot be said that it was error for the Tax Court to find that no evidence had been produced that served to overcome the presumption of correctness that supports the assessments made by the Commissioner until overcome by credible proof. 47 C.J.S. Internal Revenue § 709 a, pages 936-937, and cases cited in Footnotes 45 and 46; Viles v. Commissioner of Internal Revenue, 6 Cir., 233 F.2d 376, 379; Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150. The assessments by the Commissioner were properly based upon the reports of the responsible revenue agents and under the law were entitled to a presumption of correctness until overcome by credible proof. As a matter of fact, the record contains evidence which clearly tends to support the conclusion that the total amount of unrecorded fees received by Mrs. Prokop was more than the total determined by the Commissioner. The number of permit holders, their average wage and the percentage of such income taken as fees all as shown by evidence gives a foundation for computation of an even larger sum of income withheld than the total found by the Commissioner. As stated by the court in Halle v. Commissioner of Internal Revenue, 2 Cir., 175 F.2d 500, at page 503: “The decided cases clearly show that we cannot here disturb the Tax Court’s findings as to the deficiencies in the taxpayer’s income tax.” The Tax Court was of opinion, however, and we share in this view, that the evidence sustained the determinations of respondent except in so far as respondent failed in the Court’s judgment to make adequate allowances for the part of the fees collected and unaccounted for by Mrs. Prokop that may have gone to Brown or to hidden Union activities. We approve the application here of the principles declared in the Cohan case, supra, in interest of fairness. In that case the court said, 39 F.2d at page 544: “It is not fatal that the result will inevitably be" }, { "docid": "23481322", "title": "", "text": "made by the purchaser. In some instances a cost figure is shown; in others it is not. The book captioned “Income Tax Book — 1944” is not in evidence. The agents made a transcript of the books and returned them to the taxpayer on January 30, 1948. The taxpayer informed the revenue agents that he had no records other than the books he gave to them. Actually on the trial he produced three other books which were also inadequate. The taxpayer was a man of considerable frugality. He was married and had a daughter living with him. He convinced the Tax Court that his personal living expenses (added to the annual increase in net worth) were only $1,000 per year for himself, wife and daughter. 'The petitioner’s first attack on the finding of the Tax Court is based on his contention that the Commissioner made arbitrary determinations of increases in net worth that were demonstrated by subsequent findings of the Tax Court to be so unreliable as to withdraw from the determinations all presumption of correctness. The chief fallacy of this contention lies in the major premise. The determinations made by the Commissioner were neither arbitrary nor unreasonable under the circumstances of the investigation. The agents made a long and painstaking investigation of taxpayer’s income. They were frustrated in their efforts to check the correctness of his returns by a complete absence of any system of accounting and a complete absence of records or supporting documents. As we said in Bryan v. Commissioner of Internal Revenue, 5 Cir., 209 F.2d 822, 827: “When a taxpayer violates the mandate of the statute which re quires him to keep proper records of his income, [26 U.S.C.A. § 54(a)] and conditions are otherwise such that his taxable income may be determined in retrospect only by resort to circumstantial evidence of this character, he will not be permitted to rely upon his ability to conceal the detailed facts of his income and his fraudulent conduct to avoid the imposition of taxes which the collecting authorities may show to be lawfully due.” Here resort was" }, { "docid": "14099237", "title": "", "text": "of the night. Signs were displayed to advise patrons in the Cloverleaf Bar that during the hours of entertainment all prices would include cabaret and State sales taxes. Anyone served in the other rooms, or anyone coming in off the street, could walk freely into the Cloverleaf Bar and observe the entertainment without cost. The learned District Judge held that Congress had not intended to levy a tax on receipts collected for refreshments before the beginning or after the conclusion of the entertainment which qualified the rooms as cabarets within the meaning of the statutes, and that other than during the time of the taxable entertainment, the rooms were not cabarets. He further held that receipt of payment before or after the taxable entertainment, when the rooms were not cabarets, did not entitle the customers, from whom the payment was received, to be present during the entertainment. The District Judge also found that the % and % estimates, by the Commissioner, of pre- and post-entertainment patrons who viewed the entertainment were arbitrary and exaggerated. The government contends that the evidence failed to show, or the District Court to find, what proportion of the pre- and post-entertainment patrons did view the entertainment. The District Court found that most of the early patrons departed prior to midnight when the taxable entertainment began. Witnesses testified that 8 to 10% of the pre-entertainment and 5 to 10% of the post-entertainment patrons might have been present during the entertainment, and' that practically all patrons left after the entertainment, with service continuing principally to such few patrons as came in late after other establishments had closed. As the government argues, there is a presumption that the Commissioner’s determination of a deficiency is correct. That presumption, however, may be overcome by proof in rebuttal. The taxpayer’s witnesses here did testify that the figures were more likely 8 to 10% and 5 to 10%, rather than the 33%% and 50% estimates of the Commissioner. Nevertheless, there is no dispute as to the taxes paid on sales and receipts during the period of taxable entertainment; the District Judge found" }, { "docid": "2647641", "title": "", "text": "reading the cash register at the beginning of the period of activity in the restaurant which constituted a cabaret operation and a reading at the end of such activity. The agent on the basis of this one-week test estimated a percentage of gross sales that was attributed to the business within the contemplation of the Cabaret Tax. This formula was then applied retroactive to cover the period from May 1953 to some time in 1956. The taxpayer in an attempt to determine the proper amount of Cabaret Tax due ran a similar test for one month and arrived at a percentage figure of 26% gross receipts as contrasted with the percentage figure of 44.3176% estimated by the Treasury agent. The plaintiffs during this entire period of operations paid Cabaret Tax in the amount percentage-wise that averaged a little over 9%. It would seem the real issue here involved is a determination that if the approximate 9% of gross receipts on which tax was actually paid was erroneous, then what would be the proper percentage of gross receipts on which the tax should be computed ? It is my opinion that the Government’s figure of 44.3176% of gross receipts arrived at in June 1956 and applied retroactively to a period extending back to May 1953, constitutes an inaccurate and unfair determination of Cabaret Tax allegedly due. The facts are somewhat similar to those in Hrcka v. Crenshaw, Collector, D.C., 140 F.Supp. 350, affirmed on other grounds, 4 Cir., 237 F.2d 372. In that case the taxpayers operated a retail shoe store. The Revenue agents, not finding a satisfactory set of books and being unable to obtain a satisfactory result by a net worth and bank deposit examination, undertook to determine the income by a comparison with the income of a somewhat similar business located in the same block. Upon suit for refund the Government defended the assessment but relied principally upon a technical defense. The evidence in this case clearly indicates that the taxpayers were operating a growing business. In the early formative years the activity was much less than in" }, { "docid": "13217561", "title": "", "text": "all amounts paid for admission, refreshment, service, or merchandise at any cabaret or other similar place furnishing a public performance for profit by or for any patron or guest who is entitled to be present during any portion of such performance. “The words ‘entitled to be present’ as used in this law means patrons or guests who actually remain during any portion of the dancing or entertainment. A patron who pays and leaves the establishment before the dancing and entertainment begins does not come within the meaning of this language. In other words, the test is not when the amount is paid, but instead is whether the person paying for refreshments, etc., was present during any portion of the dancing or entertainment. “Instruction No. 8. “You are further instructed that the Commissioner of Internal Revenue is charged with the duty and the power by law of assessing internal revenue taxes of the Government of the United States and when an assessment has been made by him it is to be presumed, until such presumption is overcome by proof to the contrary, that it was made upon sufficient evidence and was in all respects correct. Before you can disregard a determination of the Commissioner, you must be convinced by a preponderance of the evidence that the Commissioner acted in a manner unjust to plaintiffs and unwarranted by the actual facts. Such determination and any assessment made pursuant thereto is prima facie evidence of the resulting tax liabilities, and prima facie evidence is such evidence as is sufficient when unassailed to establish a given fact, and it remains sufficient for that purpose until it is rebutted and overcome by competent evidence. “The Government’s determination •of tax liability, as stated, is presumed to be correct and this presumption is effective until the taxpayer introduces evidence of the invalidity of the determination. Therefore, if you find from a preponderance of the evidence that the Government’s actions and its computations upon which the assessment is based are arbitrary and excessive then the assessment is not entitled to treatment as presumptively correct. Thus, in this case," }, { "docid": "2647642", "title": "", "text": "gross receipts on which the tax should be computed ? It is my opinion that the Government’s figure of 44.3176% of gross receipts arrived at in June 1956 and applied retroactively to a period extending back to May 1953, constitutes an inaccurate and unfair determination of Cabaret Tax allegedly due. The facts are somewhat similar to those in Hrcka v. Crenshaw, Collector, D.C., 140 F.Supp. 350, affirmed on other grounds, 4 Cir., 237 F.2d 372. In that case the taxpayers operated a retail shoe store. The Revenue agents, not finding a satisfactory set of books and being unable to obtain a satisfactory result by a net worth and bank deposit examination, undertook to determine the income by a comparison with the income of a somewhat similar business located in the same block. Upon suit for refund the Government defended the assessment but relied principally upon a technical defense. The evidence in this case clearly indicates that the taxpayers were operating a growing business. In the early formative years the activity was much less than in the later period of time when the agent made his computations. The record is inadequate for this Court to determine what is the precise percentage formula by which the Cabaret Tax can be accurately computed. However, the plaintiffs conceded that their test conducted over a longer period of time disclosed a percentage of gross receipts of approximately 26%. This it would seem, amounts to the admission that the 9% of gross receipts on which Cabaret Tax was actually paid was an inadequate amount. Therefore, it is my conclusion that the proper tax due by the plaintiffs should be computed by the formula of 26% of the gross receipts of the activity that comes within the contemplation of the Cabaret Tax Statute. No other method of determination has been suggested. I am aware of the presumption of correctness raised by the Commissioner’s determination, but the evidence is such that in my opinion that presumption is overcome and we are left with no proof better than the test made by the taxpayers discussed earlier. It is suggested" } ]

[ { "docid": "23462104", "title": "", "text": "the Constitution is presented by the second count of the information.- That count alleges that the prison-made goods described were sold to a purchaser in Ohio for shipment via railway express from a prison in Alabama. Whether the court below intended to sustain this count is not clear; but the state confines its argument here to a defense of its asserted power to prohibit and penalize the sale of such goods upon the open market and the statute apparently goes no further than this. In any event, for present purposes, we lay that count out of the case, and limit; our consideration to the first count. True, the petitioner was found guilty upon both counts, but the penalty imposed upon him does not exceed that which might have been exacted under the first count if it had stood alone. The case, therefore, falls within the rule, frequently stated by this court, that a judgment upon an indictment containing several counts, with a verdict of guilty upon each, will be sustained if any count is good, and sufficient in itself to support the judgment. Claassen v. United States, 142 U. S. 140, 146; Evans v. United States, 153 U. S. 584, 595; Abrams v. United States, 250 U. S. 616, 619; Brooks v. United States, 267 U. S. 432, 441. The first count simply charges, in the terms of the statute, that petitioner unlawfully sold on the open market in Ohio certain goods made-by prison labor in Alabama. These goods, according ro the stipulation of facts, were sold in original packages as they were shipped in interstate commerce into Ohio. When the goods were sold, their transportation had come to an end; and the regulative power of the state had attached, except so far as that power might be affected by the fact that the packages were still unbroken. But any restrictive influence which that fact otherwise might have had upon the state power was completely removed by Congress, if the HawesCooper Act be valid. That act is in substance the same as the Wilson Act with respect to intoxicating liquors," } ]

[ { "docid": "8135726", "title": "", "text": "thereof, or a regularly licensed wholesaler or distributor of beer, malt liquor, or other intoxicating liquor, in the case of malt liquor, and other intoxicating liquor, brewed, manufactured or distilled, in this state; or, to purchase from any brewer, manufacturer, or distiller, any intoxicating liquor, manufactured outside of this state, except through a wholesaler or distributor, in this state holding, and operating under, a license or permit issued by the Supervisor of Liquor Control.” Comment. The act further provides that a wholesale dealer in this state shall pay an annual license fee of $500, and that a nonresident must pay the same fee in order to sell intoxicating liquors in this state. The plaintiff has paid this fee and is authorized to sell liquors in this state. Plaintiff cannot, however, sell directly to a retail liquor dealer, but must sell to a wholesale dealer in this state, or through such wholesale dealer to the retail dealer. This constitutes the basis of the contention in this case. The plaintiff contends to require it to pay the same license fee that the Missouri wholesale dealer is required to pay, and then to prohibit plaintiff from selling liquor to the retail dealer as the resident wholesale dealer may do, places a burden upon interstate commerce, and deprives plaintiff of the equal protection of the law under the Fourteenth Amendment. The Twenty-First Amendment, effective December 5, 1933, provides: “Sec. 2. The transportation or importation into any State, Territory, or possession of the Unit-” ed States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” The Webb-Kenyon Act, 27 U.S.C.A. § 122 provides: “that the shipment or transportation of intoxicating liquor” from any place into a State “to be received, possessed, sold, or in any manner used * * * in violation of any law of such State * * * is hereby prohibited.” Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326, L.R.A.1917B, 1218, Ann.Cas. 1917B, 845, holds that the Webb-Kenyon Act is constitutional: (1) That Congress may" }, { "docid": "8135727", "title": "", "text": "same license fee that the Missouri wholesale dealer is required to pay, and then to prohibit plaintiff from selling liquor to the retail dealer as the resident wholesale dealer may do, places a burden upon interstate commerce, and deprives plaintiff of the equal protection of the law under the Fourteenth Amendment. The Twenty-First Amendment, effective December 5, 1933, provides: “Sec. 2. The transportation or importation into any State, Territory, or possession of the Unit-” ed States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” The Webb-Kenyon Act, 27 U.S.C.A. § 122 provides: “that the shipment or transportation of intoxicating liquor” from any place into a State “to be received, possessed, sold, or in any manner used * * * in violation of any law of such State * * * is hereby prohibited.” Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326, L.R.A.1917B, 1218, Ann.Cas. 1917B, 845, holds that the Webb-Kenyon Act is constitutional: (1) That Congress may properly prevent the shipment of liquor into a state in violation of the law of that state. (2) That'the movement of liquor in interstate commerce and the receipt and possession and right to sell prohibited by the state law were in express terms divested by the Webb-Kenyon Act of their interstate character. (3) Congress by the Webb-Kenyon Act released and surrendered to the states the authority to regulate interstate commerce of intoxicating liquors into the several states, and made its importation into a particular state subject to the laws of that state. McCormick & Co. v. Brown, 286 U.S. 131, 52 S.Ct. 522, 76 L.Ed. 1017, 87 A.L.R. 448, holds: (1) That Webb-Kenyon Act was not repealed by the Eighteenth Amendment, or National Prohibition Act (27 U.S.C.A. § 1 et seq.). (2) That alcoholic preparations, made and sold for medicinal, mechanical, toilet, and culinary purposes, held subject to provisions of the West Virginia prohibition statute, and regulations thereunder, by which nonresident manufacturers and wholesalers, though holding federal permits issued under the National Prohibition Act, are" }, { "docid": "3200492", "title": "", "text": "a kidnaped person, is not, in our opinion, cruel and unusual punishment within the constitutional inhibition (Const. Amend. 8). The power to regulate interstate commerce includes the power to prohibit its use to facilitate wrongful and injurious acts or practices. Hoke v. United States, 227 U. S. 308, 323, 33 S. Ct. 281, 57 L. Ed. 523, 43 L. R. A. (N. S.) 906, Ann. Cas. 1913E, 905; Caminetti v. United States, 242 U. S. 470, 491, 37 S. Ct. 192, 197, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168; Brooks v. United States, 267 U. S. 432, 45 S. Ct. 345, 69 L. Ed. 699, 37 A. L. R. 1407; Clark Drilling Co. v. Western Maryland R. Co., 242 U. S. 311, 37 S. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B, 1218, Ann. Cas. 1917B, 845; Weber v. Freed, 239 U. S. 325, 36 S. Ct. 131, 60 L. Ed. 308, Ann. Cas. 1916C, 317. In Caminetti v. United States, supra, the court said: “The authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.” To prohibit the use of the channels of interstate commerce to facilitate the crime of kidnaping is clearly within the power of Congress. The judgment is affirmed. 18 USCA § 408a reads as follows: “Whoever shall knowingly transport or cause to be transported, or aid or abet in transporting, in interstate or foreign commerce, any person who shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away by any means whatsoever and held for ransom or reward shall, upon conviction, be punished by imprisonment in the penitentiary for such term of years as the court, in its discretion, shall deter mine: Provided, That the term ‘interstate or foreign commerce’ shall include transportation from one State, Territory, or the District of Columbia to another State, Territory, or the District of Columbia, or to a foreign country; or from a foreign country to any State, Territory, or the" }, { "docid": "15303340", "title": "", "text": "the carriage of those tickets to be sold in other states and thus demoralize, through a spread of the gambling habit, individuals who were likely to purchase. In Hipolite Egg Co. v. United States, 220 U.S. 45, 31 S.Ct. 364, 55 L.Ed. 364, it was held that it was within the regulatory power of Congress to punish the transportation in interstate commerce of adulterated articles which if sold in other states from the one from which they were transported, would deceive or injure persons who purchased such articles. In Hoke v. United States, 227 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523, 43 L.R.A.(N.S.) 906, Ann.Cas.1913E, 905, and Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442, L.R.A.1917F, 502, Ann.Cas.1917B, 1168, the so-called White Slave Traffic Act [18 U.S. C.A. § 397 et seq.], which was construed to punish any person engaged in enticing a woman from one state to another for immoral ends, whether for commercial purposes or otherwise, was valid because it was intended to prevent the use of inter state commerce to facilitate prostitution or concubinage and other forms of immorality. In Clark Distilling Co. v. Western Maryland Railway Co., 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326, L.R.A.1917B, 1218, Ann.Cas.1917B, 845, it was held that Congress had power to forbid the introduction of intoxicating liquors into any state in which their use was prohibited in order to prevent the use of interstate commerce to promote that which was illegal in the state. In Weber v. Freed, 239 U.S. 325, 36 S.Ct. 131, 60 L.Ed. 308, Ann.Cas.1916C, 317, it was held that Congress had power to prohibit the importation of pictorial representations of prize fights designed for public exhibition because of the demoralizing effect of such exhibitions in the state of destination.” Brooks v. United States, supra, 267 U.S. 432, 437, 45 S.Ct. 345, 346, 69 L.Ed. 699, 37 A.L.R. 1407. To these may be added the prevention of economic harm to dairymen in their competition with butter substitutes such as oleomargarine. Such prevention by the state is not a violation of" }, { "docid": "15199894", "title": "", "text": "the act in question, concerning the means by which their product is transported into the state, does not create a burden upon interstate commerce or upon the product so shipped, in so far as these plaintiffs are concerned. It seems that an individual who manufactures alcoholic malt beverages out side a state cannot complain of the restrictions placed upon him by virtue of the laws of that state. It is, of course, well settled that, because of the peculiar character of the liquor traffic, each state may deal with the problem presented thereby under its police powers. The product used in the traffic is not subject to transportation unrestricted in interstate commerce as are other products or commodities which are not subject to the police powers of the various states. This question has been discussed by the Supreme Court of the United States in various decisions having to do with a consideration of the validity of the Webb-Kenyon Act and other legislation affecting the rights of interstate commerce when applied to intoxicating liquors. The state has authority to exercise a measure of control over the interstate commerce in intoxicating liquor coming within its borders by reason of the provisions contained in the Wilson Act, 27 U.S.C.A. § 121, the Webb-Kenyon Act, 27 U.S.C.A. § 122 and note, and the Reed Amendment, 27 U.S.C. A. § 123. These acts were not repealed by virtue of the Eighteenth Amendment or the National Prohibition Act. Washington v. Miller, 235 U.S. 422, 35 S.Ct. 119, 59 L.Ed. 295. The argument was made in the case of James Clark Distilling Co. v. Western Maryland Railway Company et al., 242 U.S. 311, 37 S.Ct. 180, 187, 61 L.Ed. 326, L.R.A.1917B, 1218, Ann.Cas.1917B, 845 with reference to the Commerce Clause that to permit the state prohibition of intoxicating liquor to interfere with interstate commerce in that article “lays the basis for subjecting interstate commerce in all articles to state control, and therefore destroys the Constitution.” In answering that contention, the Supreme Court said: “The want of force in the suggested inconvenience becomes patent by considering the principle" }, { "docid": "15303339", "title": "", "text": "punishing the use of such commerce as an agency to promote * * * the spread of any evil or harm to the people of other states from the state of origin.” Brooks v. United States, supra, 267 U.S. 432, 436, 45 S.Ct. 345, 346, 69 L.Ed. 699, 37 A.L.R. 1407. The “evil or harm” which Congress has the police power to prevent by prohibitory regulation of interstate commerce is economic as well as to the human body, civil as well as criminal. The Chief Justice’s opinion summarizes them as follows: “In Reid v. Colorado, 187 U.S. 137, 23 S.Ct. 92, 47 L.Ed. 108, it was held that Congress could pass a law excluding diseased stock from interstate commerce in order to prevent its use in such a way as thereby to injure the stock of other states. In the Lottery Case, 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492, it was held that Congress might pass a law punishing the transmission of lottery tickets from one state to another, in order to prevent the carriage of those tickets to be sold in other states and thus demoralize, through a spread of the gambling habit, individuals who were likely to purchase. In Hipolite Egg Co. v. United States, 220 U.S. 45, 31 S.Ct. 364, 55 L.Ed. 364, it was held that it was within the regulatory power of Congress to punish the transportation in interstate commerce of adulterated articles which if sold in other states from the one from which they were transported, would deceive or injure persons who purchased such articles. In Hoke v. United States, 227 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523, 43 L.R.A.(N.S.) 906, Ann.Cas.1913E, 905, and Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442, L.R.A.1917F, 502, Ann.Cas.1917B, 1168, the so-called White Slave Traffic Act [18 U.S. C.A. § 397 et seq.], which was construed to punish any person engaged in enticing a woman from one state to another for immoral ends, whether for commercial purposes or otherwise, was valid because it was intended to prevent the use of" }, { "docid": "15758600", "title": "", "text": "free to enact such laws relating to the traffic in intoxicating liquor as it may desire. There appears to be no prohibition in the act against discrimination between liquors produced within the state and those produced outside the state. A leading case under the Webb-Kenyon Act is Clark Distilling Company v. Western Maryland Ry. Co., 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326, L.R.A.1917B, 1218, Ann.Cas.1917B, 845. The case involved an act of West Virginia which forbade all shipments of intoxicating liquor into the state whether for personal use or otherwise. The distilling company offered for transportation into the state a shipment of intoxicating liquor which the defendant railway refused to accept and the plaintiff brought its action (for damages). It was held that the Webb-Kenyon Act operated to give effect to the prohibition of the West Virginia law in respect to liquors shipped into the state for personal use by withdrawing from such shipments the immunity of interstate commerce and to forbid the shipment or transportation into the state of liquors intended to be received or possessed there for personal use contrary to such state prohibition. It was further held that the Webb-Kenyon Act was a legitimate exercise of the power of Congress, and that that power, in the case of intoxicants, because of their character extends to the total prohibition of their transports in interstate commerce, and necessarily includes the lesser power exercised in the Webb-Kenyon Act of adapting the regulation to the various local requirements and conditions that may be expressed in the laws of the state. In view of the legislation above mentioned, it cannot be claimed that the New Hampshire act of which complaint is made imposes an undue burden upon interstate commerce and for that reason is unconstitutional. See Seaboard Air Line Ry. v. State of North Carolina, 245 U.S. 298, 38 S.Ct. 96, 62 L.Ed. 299; United States v. Hill, 248 U.S. 420, 39 S.Ct. 143, 144, 63 L.Ed. 337. The last-mentioned case was decided under the Reed Amendment passed by Congress March 3, 1917 (U.S.C.A. tit. 27, § 123). In the" }, { "docid": "6408719", "title": "", "text": "many cases even where state action apparently has been in conflict with Congressional action and the Supreme Court has held none the less that there remains a regulatory field in which the state may act. A cogent illustration lies in the decision of the Supreme Court in Clark Distilling Co. v. Western Md. Ry. Co., 242 U.S. 311, 325-332, 37 S.Ct. 180, 61 L.Ed. 326, L.R.A.1917 B, 1218, Ann.Cas.l917B, 845, passing upon the application of the Webb-Kenyon Law, 37 Stat. 699, 27 U.S.C.A. § 122, which held in effect that Congress might throw an interstate shipment of intoxicating liquors into intrastate commerce as it passed the state line, the use to which the shipment was then to be put becoming a matter of local concern and the police power of West Virginia operating in respect to it. There is an analogy between the Clark Distilling case and that at bar for the consumption of power is a local matter, almost as if a package of power had been delivered at the state line. The case at bar, however, is a stronger case for the exercise of state police power for in the instant case Congress has spoken and specifically has given permission for the exercise of state power. There is a field in which state power may act upon the products of interstate commerce and though that field is difficult to delimit we think that Congress intended to base Section 20 upon it and could do so without violation of the commerce clause of the Constitution. Indeed, if only one state or one state agency was concerned in the case at bar, we would conclude that the decision of the Supreme Court in the Pennsylvania Gas Co. rather than that of the Attleboro case was governing. In the instant case it is necessary to go one step further, however. While the Public Service Commission of Maryland within the doctrine of the Pennsylvania Gas Co. case can regulate the rates and services charged for the hydroelectric energy generated by Safe Harbor and consumed in Maryland or delivered at the district line" }, { "docid": "15758599", "title": "", "text": "this respect it is not interfered with by the Fourteenth Amendment. Barbier v. Connolly, 113 U.S. 27, 31, 5 S.Ct. 357 [28 L.Ed. 923].” The Webb-Kenyon Act. Next came the Webb-Kenyon Act enacted March 1, 1913 (U.S.C.A. tit. 27, § 122 and note). This act was a further surrender to the states of the constitutional power of Congress to regulate interstate commerce in intoxicating liquors. This act in its original form contained the same language that was used in the Wilson Act to prevent discrimination against out-of-state products. See 49 Cong.Rec. p. 1687. In the act as finally passed the restrictive language does not appear. Its omission seems important. It shows an intent to give the states an entirely free hand in regulating the importation and transportation of liquor. Under the Webb-Kenyon Act the shipment or transportation in any manner or by any means of any spiritous or intoxicating liquor from one state to another to be disposed of in violation of any law of such state is prohibited. Each state appears to be left free to enact such laws relating to the traffic in intoxicating liquor as it may desire. There appears to be no prohibition in the act against discrimination between liquors produced within the state and those produced outside the state. A leading case under the Webb-Kenyon Act is Clark Distilling Company v. Western Maryland Ry. Co., 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326, L.R.A.1917B, 1218, Ann.Cas.1917B, 845. The case involved an act of West Virginia which forbade all shipments of intoxicating liquor into the state whether for personal use or otherwise. The distilling company offered for transportation into the state a shipment of intoxicating liquor which the defendant railway refused to accept and the plaintiff brought its action (for damages). It was held that the Webb-Kenyon Act operated to give effect to the prohibition of the West Virginia law in respect to liquors shipped into the state for personal use by withdrawing from such shipments the immunity of interstate commerce and to forbid the shipment or transportation into the state of liquors intended to" }, { "docid": "21536347", "title": "", "text": "11 S. Ct. 865; 35 L. Ed. 572; Clark Distilling Co. v. Western Maryland R. R. Co., 242 U. S. 3.11, 37 S. Ct. 180, 61 L. Ed. 326; L. R. A. 1917B, 1218, Ann. Cas. 1917B, 845. So the states in the exercise of their police power regulate the stealing of automobiles, but Congress supplementarily forbids and punishes the interstate transportation of stolen car's. Brooks v. United States, 267 U. S. 432, 46' S. Ct. 345; 69 L. Ed. 699, 37 A. L. R. 1407. The Lottery Act supplements in the federal domain a police power indubitably residing in the states. Champion v. Ames, 188 U. S. 321, 23 S. Ct. 321, 47 L. Ed. 492. Other instances might be cited. The provision of the National Industrial Recovery Act under discussion is not unconstitutional because it operates and was intended to operate so as to make more effectual valid state action with reference to oil production. Nor is it unconstitutional because its effect is temporarily to restrict the volume of interstate and foreign commerce in oil. No doubt in general there should be free trade-among the states, hut that is not to say that laissez faire must have full scope. The power to regulate interstate commerce is given to Congress in identical terms with the power to regulate foreign commerce. The regulation of foreign commerce for the good of the whole country by severe restrictions on immigration, and by protective tariffs on goods, and by embargoes, is a part of our history and may be independent of any inherent objectionableness in the persons or the articles affected. A similar power, with some special restrictions, exists as to interstate commerce and may be exercised not only to exclude harmful articles but to better the health and stability of such commerce as a whole. Regulation by prohibition was upheld in the eases above cited. What a centralized constitutional government may do- in the way of regulation of trade or commerce our dual system can accomplish by the co-operation of its state and central governments. The contention is also- made that the" }, { "docid": "21536346", "title": "", "text": "was not created to be an opponent and a rival of the state governments, but to be a supplement and a protection to them. Its enumerated powers, although supreme and sometimes exercised to the dissatisfaction of some state, are not misused when by a happy concord of duty these governments can co-operate. The grant to the central government of the power to regulate interstate and foreign commerce is without qualification and in general exclusive of the states, and that government may rightly take up the regulation of a matter at the point where the state government because of this grant must itself cease to regulate. Thus when some of the states in the exercise of their general police power sought to control the transportation and sale of intoxicating- liquors within their border's, Congress with a plain purpose to make the state regulation more effective first made such liquors subject to state laws on arrival, and later forbade them to be transported in interstate commerce into such a state. In re Rahrer, 140 U. S. 545; 11 S. Ct. 865; 35 L. Ed. 572; Clark Distilling Co. v. Western Maryland R. R. Co., 242 U. S. 3.11, 37 S. Ct. 180, 61 L. Ed. 326; L. R. A. 1917B, 1218, Ann. Cas. 1917B, 845. So the states in the exercise of their police power regulate the stealing of automobiles, but Congress supplementarily forbids and punishes the interstate transportation of stolen car's. Brooks v. United States, 267 U. S. 432, 46' S. Ct. 345; 69 L. Ed. 699, 37 A. L. R. 1407. The Lottery Act supplements in the federal domain a police power indubitably residing in the states. Champion v. Ames, 188 U. S. 321, 23 S. Ct. 321, 47 L. Ed. 492. Other instances might be cited. The provision of the National Industrial Recovery Act under discussion is not unconstitutional because it operates and was intended to operate so as to make more effectual valid state action with reference to oil production. Nor is it unconstitutional because its effect is temporarily to restrict the volume of interstate and foreign commerce" }, { "docid": "17863565", "title": "", "text": "68 Okl. 183, 173 P. 73, L.R.A.1918F, 259. Joseph Triner Oorp. v. Arundel, D. C. Minn., 11 F.Supp. 145, 146, 147; General Sales & Liquor Co. v. Becker, D. C.Mo., 14 F.Supp. 348, 350; Riggins v. District Court of Salt Lake County, 89 Utah 183, 51 P.2d 645, 653. This construction accords with that given to analogous Congressional enaetments. 37 Stat. 699, 49 Stat. 877, 27 U.S.C.A. § 122; McCormick & Co. v. Brown, 286 U.S. 131, 140, 52 S.Ct. 522, 525, 76 L.Ed. 1017, 87 A.L.R. 448; Clark Distilling Co. v. Western Md. Ry. Co., 242 U.S. 311, 323, 324, 37 S.Ct. 180, 61 L.Ed. 326, L.R.A.1917B, 1218, Ann.Cas.1917B, 845. WILLIAMS, Circuit) Judge (dissenting)- I am unable to concur in the holding that Section 2 of the Twenty-first Amendment, U.S.C.A.Const. Amend. 21, § 2, is not self-executing. The Senate of the United States, on May 28, 1938, passed Bill (H,R. 7508) to amend the Liquor Enforcement Act of 1936, so as to read as follows, to-wit: “Sec. 3. Whoever shall import, bring, or transport any intoxicating liquor into any State in which all sales (except for scientific, sacramental, medicinal, or mechanical purposes) of intoxicating liquor containing more than 5 percent of alcohol by weight are prohibited, otherwise when in the course of continuous interstate transportation through such State, or attempt so to do, or assist in so doing, shall, if the importation, bringing, or transportation of .such intoxicating liquor into, or the transportation thereof within, such State is prohibited by the laws thereof, be guilty of a misdemean- or and shall be fined not more than $1,000 or imprisoned not more than 1 year, or both. All importation, bringing, or transportation of intoxicating liquor into any such State for delivery or use therein, or through such State in the course of continuous interstate transportation, shall be evidenced by shipping documents in the manner and form prescribed by the Commissioner of Internal Revenue in regulations approved by the Secretary -of the Treasury. Whenever the officers charged with the enforcement of this act shall discover intoxicating liquor in the course of" }, { "docid": "5404151", "title": "", "text": "defendants assert to be an “undoubted and demonstrable fact” that organized crime has infiltrated and receives funds from legal gambling. While this argument is intriguing, to say the least, it carries little weight. The law is clear that there is no requirement of national uniformity when Congress exercises its power under the Commerce Clause. See Currin v. Wallace, supra, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441; Secretary of Agriculture v. Central Roig Refining Co., supra, 338 U.S. 604, 70 S.Ct. 403, 94 L.Ed. 381; Clark Distilling Co. v. Western Md. Ry. Co., 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326 (1917). The Constitution is not violated when a federal statute incorporates the laws of the states. See United States v. Sharpnack, 355 U.S. 286, 78 S.Ct. 291, 2 L.Ed.2d 282 (1958) (assimilative crimes, 18 U.S.C.A. § 13); Kentucky Whip & Collar Co. v. Illinois C. R. Co., 299 U.S. 334, 57 S.Ct. 277, 81 L.Ed. 270 (1937) (convict-made goods); Clark Distilling Co. v. Western Md. Ry. Co., supra, 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326 (liquor transportation, 27 U.S.C.A. § 122). The argument that there is no rational basis for excluding legal gambling from the “Organized Crime Control Act” falls for the obvious reason that if gambling is legal in a state, there is no crime in the gambling activity and thus no “organized crime” to control. It is not the purpose of § 1955 to prohibit gambling, but only to prohibit “illegal” gambling of such a size as would affect interstate commerce. The defendants forget that they are the organizers of the illegal gambling activities here involved and therefore the organized criminal elements targeted by Congress. The flow of funds from illegal gambling to the organized criminal element is obvious because to organize and conduct a criminal enterprise by definition channels profits to the organized criminal element, while the operation of a legal gambling business does not necessarily generate profits for those who are otherwise engaged in criminal activity. We reject the argument that Congress had no rational basis in acting against illegal gambling" }, { "docid": "15303341", "title": "", "text": "inter state commerce to facilitate prostitution or concubinage and other forms of immorality. In Clark Distilling Co. v. Western Maryland Railway Co., 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326, L.R.A.1917B, 1218, Ann.Cas.1917B, 845, it was held that Congress had power to forbid the introduction of intoxicating liquors into any state in which their use was prohibited in order to prevent the use of interstate commerce to promote that which was illegal in the state. In Weber v. Freed, 239 U.S. 325, 36 S.Ct. 131, 60 L.Ed. 308, Ann.Cas.1916C, 317, it was held that Congress had power to prohibit the importation of pictorial representations of prize fights designed for public exhibition because of the demoralizing effect of such exhibitions in the state of destination.” Brooks v. United States, supra, 267 U.S. 432, 437, 45 S.Ct. 345, 346, 69 L.Ed. 699, 37 A.L.R. 1407. To these may be added the prevention of economic harm to dairymen in their competition with butter substitutes such as oleomargarine. Such prevention by the state is not a violation of the due process clause of the Fourteenth Amendment which in this respect is the same as the Fifth. Hammond Co. v. Montana, 233 U.S. 331, 333, 34 S.Ct. 596, 58 L.Ed. 985. ' Oleo oil used in manufacture of oleomargarine may be prohibited by Congress from entering interstate carriage unless it has complied with the inspection rules of the United States meat inspectors. Pittsburgh Melting Co. v. Totten, 248 U.S. 1, 39 S.Ct. 3, 63 L.Ed. 97. Applying the Hammond Case, it is within the federal police power to aid dairymen by prohibiting entirely its interstate carriage, without violation of the due process clause. Grain may be prohibited from entering interstate commerce if not inspected by federal inspectors and classified according to their standards. Once the federal inspection is established, it ousts the authority of the state to impose its inspection. Shafer v. Farmers’ Grain Co., 268 U.S. 189, 45 S.Ct. 481, 69 L.Ed. 909. Marketing of grain in the Grain Exchange may be regulated as to future sales destroying the liberty to make certain" }, { "docid": "21374475", "title": "", "text": "McDermott v. Wisconsin, 228 U.S. 115, 33 S.Ct. 431, 433, 57 L.Ed. 754, 47 L.R.A., N.S., 984, Ann.Cas. 1915A, 39, as follows: “[Congress] has the right not only to pass laws which shall regulate legitimate commerce among the states. and with foreign nations, but has full power to keep the channels of such commerce free from the transportation of illicit or harmful articles, to make such as are injurious to ■ the public health outlaws of such commerce, and to bar them from the facilities and privileges thereof.” While the police power is ordinarily said to be reserved by the states, it is obvious that it extends fully likewise to the federal government in so far as that government acts within its constitutional jurisdiction and that, more specifically, the exercise of police power is within the authority of Congress in the protection of interstate commerce. Thus in Hoke v. United States, 227 U.S. 308, 33 S.Ct. 281, 284, 57 L.Ed. 523, 43 L.R.A., N.S., 906, Ann.Cas. 1913E, 905, the court observed that the power of Congress over transportation among the several states is complete in itself; that that body may adopt any means convenient to its exercise; and that “the means may have the quality of police regulations.” See, .also, Clark Distilling Co. v. Western Maryland Railway Co., 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326, L.R.A.1917B, 1218, Ann.Cas.1917B, 845; Lottery Case, 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492; Seven Cases v. United States, 239 U.S. 510, 36 S.Ct. 190, 60 L.Ed. 411, L.R.A.1916D, 164, and Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442, L.R.A.1917F, 502, Ann.Cas.1917B, 1168. As Mr. Chief Justice Taft said in Brooks v. United States, 267 U.S. 432, 45 S.Ct. 345, 346, 69 L.Ed. 699, 37 A.L.R. 1407: “Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other states from the state of origin. In doing this it is merely" }, { "docid": "12945772", "title": "", "text": "to aid the enforcement of state laws and to reach and bring to the bar of justice a roving class of criminals. As is well known, under the interstate commerce clause of the federal constitution Congress has been able lawfully to provide punishment for the theft of goods shipped in interstate commerce; for the transportation in interstate commerce of stolen automobiles [Dyer Act, 18 U.S.C.A. § 408], women for the purposes of prostitution [Mann Act, 18 U.S.C.A. § 397 et seq.], stolen property, money and securities; and for numerous other criminal acts. In upholding the constitutionality of the Mann Act, the Supreme Court held that, although women are not articles of merchandise, their transportation in interstate commerce for immoral purposes could be prohibited by an Act of Congress. Hoke v. United States, 227 U.S. 308, 320, 323, 33 S.Ct. 281, 283, 57 L.Ed. 523, 43 L.R.A., N.S., 906, Ann.Cas,1913E, 905. It was pointed out that the power to regulate interstate commerce is direct; that there is no word of limitation in the interstate commerce clause; and that “its broad and universal scope has been so often declared as to make repetition unnecessary.” In Brooks v. United States, 267 U.S. 432, 436, 437, 45 S.Ct. 345, 346, 69 L.Ed. 699, 37 A.L. R. 1407, wherein the Dyer Act was held to be constitutional, Chief Justice Taft said: “Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other states from the state of origin. In doing this it is merely exercising the police power, for the benefit of the public, within the field of interstate commerce.” Numerous lawful exercises of the power were given as illustrations. Judge Hamilton, at the time of his death a member of this court, was required when United States District Judge for the Western District of Kentucky to pass upon the constitutionality of section 408e, Title 18, of the United States Code Annotated. United States v. Miller, D.C., 17" }, { "docid": "17863564", "title": "", "text": "State; or (2) if all importation, bringing, or transportation of intoxicating liquor into such State is prohibited by the laws thereof; be guilty of a misdemean- or and shall be fined not more than $1,-000 or imprisoned not more than one year, or both.” Segurola v. United States, 275 U.S. 106, 111, 112, 48 S.Ct. 77, 79, 72 L.Ed. 186; Adams v. New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575; Weeks v. United States, 232 U.S. 383, 396, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177; Winkle v. United States, 8 Cir., 291 F. 493, 496; Harkline v. United States, 8 Cir., 4 F.2d 526, 547; Tucker v. United States, 7 Cir., 299 F. 235, 237; Landwirth v. United States, 3 Cir., 299 F. 281, 283. O.S.1931, § 2596, 37 Okl.St.Ann. & 131; O.S.L.1933, ch. 153, §§ 2, 3, and 4 (approved and made effective by vote of the people July 11, 1933, 37 Okl.St. Ann. §§ 1, 82, 31); De Hasque v. Atchison, T. & S. F. Ry. Co., 68 Okl. 183, 173 P. 73, L.R.A.1918F, 259. Joseph Triner Oorp. v. Arundel, D. C. Minn., 11 F.Supp. 145, 146, 147; General Sales & Liquor Co. v. Becker, D. C.Mo., 14 F.Supp. 348, 350; Riggins v. District Court of Salt Lake County, 89 Utah 183, 51 P.2d 645, 653. This construction accords with that given to analogous Congressional enaetments. 37 Stat. 699, 49 Stat. 877, 27 U.S.C.A. § 122; McCormick & Co. v. Brown, 286 U.S. 131, 140, 52 S.Ct. 522, 525, 76 L.Ed. 1017, 87 A.L.R. 448; Clark Distilling Co. v. Western Md. Ry. Co., 242 U.S. 311, 323, 324, 37 S.Ct. 180, 61 L.Ed. 326, L.R.A.1917B, 1218, Ann.Cas.1917B, 845. WILLIAMS, Circuit) Judge (dissenting)- I am unable to concur in the holding that Section 2 of the Twenty-first Amendment, U.S.C.A.Const. Amend. 21, § 2, is not self-executing. The Senate of the United States, on May 28, 1938, passed Bill (H,R. 7508) to amend the Liquor Enforcement Act of 1936, so as to read as follows, to-wit: “Sec. 3. Whoever shall import, bring, or transport" }, { "docid": "21374476", "title": "", "text": "Congress over transportation among the several states is complete in itself; that that body may adopt any means convenient to its exercise; and that “the means may have the quality of police regulations.” See, .also, Clark Distilling Co. v. Western Maryland Railway Co., 242 U.S. 311, 37 S.Ct. 180, 61 L.Ed. 326, L.R.A.1917B, 1218, Ann.Cas.1917B, 845; Lottery Case, 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492; Seven Cases v. United States, 239 U.S. 510, 36 S.Ct. 190, 60 L.Ed. 411, L.R.A.1916D, 164, and Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442, L.R.A.1917F, 502, Ann.Cas.1917B, 1168. As Mr. Chief Justice Taft said in Brooks v. United States, 267 U.S. 432, 45 S.Ct. 345, 346, 69 L.Ed. 699, 37 A.L.R. 1407: “Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty or the spread of any evil or harm to the people of other states from the state of origin. In doing this it is merely exercising the police power, for the benefit of the public, within the field of interstate commerce.” The police power referred to “extends to all the great public needs. * * * It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.” Noble State Bank v. Haskell, 219 U.S. 104, 31 S.Ct. 186, 55 L.Ed. 112, 32 L.R.A., N.S., 1062, Ann.Cas. 1912A, 487. Its “dimensions are identical with the dimensions of the government’s duty to protect and promote the public welfare. The measure of police power must square with the. measure of public necessity.” It is beyond question, therefore, that the enactment of the law was within the power of Congress unless it is unreasonable and arbitrary. We may not inquire into the motives of Congress, Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194 or, in the absence of doubt as to its reasonableness, the wisdom" }, { "docid": "8587259", "title": "", "text": "power to the regulation of interstate competition. In sustaining the constitutionality of the Fair Labor Standards Act, the Supreme Court used the following language at 312 U.S. at page 116, 61 S.Ct. at page 458, 85 L.Ed. 609, 132 A.L.R. 1430: “*' * * the power of Congress under the Commerce Clause is plenary to exclude any article from interstate commerce subject <?nly to the specific prohibitions of the Constitution.” We find nothing in the Fifth or Tenth Amendments to curtail the authority of Congress to prohibit the shipment in interstate commerce of articles produced under substandard labor conditions, regardless of whether or not the articles compete in interstate commerce with other goods. The Supreme Court’s opinion in the Darby case specifically relies on prior Supreme Court decisions which appear to establish this principle that the power of exclusion from interstate commerce does not depend on either the “commercial” nature of the article or the existence of competition. E.g., see Gooch v. United States, 297 U.S. 124, 56 S.Ct. 395, 80 L.Ed. 522 (kidnapped persons); Brooks v. United States, 267 U.S. 432, 45 S.Ct. 345, 69 L.Ed. 699, 37 A.L.R. 1407 (stolen automobiles) ; Weber v. Freed, 239 U.S. 325, 36 S.Ct. 131, 60 L.Ed. 308, Ann.Cas.1916C, 317 (prize fight films); Hoke v. United States, 227 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523, 43 L.R.A., N.S., 906, Ann.Cas.1913E, 905, and Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442, L.R.A.1917F, 502, Ann.Cas.1917B, 1168 (women for immoral purposes); Champion v. Ames (lottery case), 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492 (lottery tickets); Reid v. Colorado, 187 U.S. 137, 23 S.Ct. 92, 47 L.Ed. 108 (diseased stock) ; United States v. Simpson, 252 U.S. 465, 40 S.Ct. 364, 64 L.Ed. 665, 10 A.L.R. 510 and United States v. Hill, 248 U.S. 420, 39 S.Ct. 143, 63 L.Ed. 337 (intoxicating liquors for personal use). See, also, Edwards v. Cali fornia, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119, where the Supreme Court, in outlawing the attempt by California to exclude from its territorial borders indigent" }, { "docid": "15199895", "title": "", "text": "has authority to exercise a measure of control over the interstate commerce in intoxicating liquor coming within its borders by reason of the provisions contained in the Wilson Act, 27 U.S.C.A. § 121, the Webb-Kenyon Act, 27 U.S.C.A. § 122 and note, and the Reed Amendment, 27 U.S.C. A. § 123. These acts were not repealed by virtue of the Eighteenth Amendment or the National Prohibition Act. Washington v. Miller, 235 U.S. 422, 35 S.Ct. 119, 59 L.Ed. 295. The argument was made in the case of James Clark Distilling Co. v. Western Maryland Railway Company et al., 242 U.S. 311, 37 S.Ct. 180, 187, 61 L.Ed. 326, L.R.A.1917B, 1218, Ann.Cas.1917B, 845 with reference to the Commerce Clause that to permit the state prohibition of intoxicating liquor to interfere with interstate commerce in that article “lays the basis for subjecting interstate commerce in all articles to state control, and therefore destroys the Constitution.” In answering that contention, the Supreme Court said: “The want of force in the suggested inconvenience becomes patent by considering the principle which, after all, dominates and controls the question here presented; that is, the subject regulated and tl^e extreme power to which that subject may be subjected. The fact that regulations 'of liquor have been upheld in numberless instances which would have been repugnant to the great guaranties of the Constitution hut for the enlarged right possessed by government to regulate liquor has never, that we are aware of, been taken as affording the basis for the thought that government might exert an enlarged power as to subjects to which, under the constitutional guaranties, such enlarged power could not be applied. In other words, the exceptional nature of the subject here regulated is the basis upon which the exceptional power exerted must rest, and affords no ground for any fear that such power may be constitutionally extended to things which it may not, consistently with the guaranties of the Constitution, embrace.” Further, in the same case, it is stated that the purpose of the Webb-Kenyon Act was “to prevent the immunity characteristic of interstate commerce from" } ]

[ { "docid": "19033358", "title": "", "text": "Specialist Campbell. You may consider these factors only, however, for the extent to which — if any — they reflect on SPC Campbell’s truthfulness. They may not be considered in determining an appropriate sentence for SPC Schnitzer for his crimes. [Questions to members omitted.] EVERETT, Senior Judge, with whom GIERKE, Judge, joins (concurring in the result): On the basis of my consideration of the record, I agree with the accused and the court below that error occurred at the trial. However, since to a considerable extent the error was invited by the defense, I conclude that this accused is not entitled to relief. As the majority opinion recites, defense counsel in his opening statement to the members commented in regard to the accused’s alleged coactor: “He agrees to testify against Schnitzer. Now he’s coming in here to reduce his 15 year sentence.” The obvious inference from this remark is that the coactor had been found guilty — either pursuant to a guilty plea or after a contested case. For this accused’s counsel to inform the court members of this circumstance would not initially seem favorable to his client’s cause. However, it might be an understandable tactic as a prelude for contending that the coactor was the person who really was guilty — as reflected by the conviction — and now was seeking to transfer blame to this accused. When the coactor — SPC Campbell — took the stand as a government witness, he was asked whether he had pleaded guilty “to the crimes that involved Specialist Schnitzer.” He responded in the affirmative — with specific mention of “rape and assault and oral sodomy, kidnapping.\" This guilty plea, entered at a prior trial, should be treated as a prior consistent statement; and in that event it would not qualify for admission as substantive 801(d)(1)(B) evidence in the Government’s case-in-chief. See Mil.R.Evid. 801(d)(1)(B), Manual for Courts-Martial, United States (1995 ed.). Likewise, it probably would not be admissible for purposes of rehabilitation of Campbell as a government witness, because the prior consistent statement did not precede the existence of a possible motive to" } ]

[ { "docid": "5275372", "title": "", "text": "a bad conduct discharge. Pending mandatory review by the Court of Military Review, which affirmed the sentence on April 23, 1976, Dexheimer was confined to the United States Disciplinary Barracks at Fort Leavenworth, Kansas. After receiving an honorable discharge on October 1, 1976, Dexheimer sued the United States under the Federal Tort Claims Act to recover damages arising out of negligence. Dexheimer alleged that sometime between December 16, 1975 and December 30, 1975, while confined to Fort Leavenworth pursuant to his sentence, he was physically and sexually assaulted by other inmates. The United States filed a motion to dismiss based on sovereign immunity, and the court entered a summary judgment of dismissal, based on its finding that at the time of the incidents in question Dexheimer was on active duty. The resolution of the issues in this appeal stems from the answers to two questions: 1) Was Dexheimer a member of the United States Army when the alleged assaults occurred? and 2) Were the alleged injuries sustained by Dexheimer while confined to the United States Disciplinary Barracks “incident” to his military service? Dexheimer’s status as a member of the United States Army at the time of the alleged assault is clear. In his complaint, he alleged that he was a member of the Army at the time of his injuries and the trial court made a specific finding of fact that Dexheimer had not been discharged at that time. We do not conclude that this finding of fact was clearly erroneous. Fed. R. Civ.P. 52(a). With regard to the second issue raised on appeal, Dexheimer has attempted to avoid the application of Feres by arguing that his status as a prisoner, not as a serviceman, should control his right to recover damages from the United States Government for injuries sustained during confinement in a federal prison. Nevertheless, the applicability of Feres and its Ninth Circuit progeny is clear. In Henninger v. United States, 473 F.2d 814 (9th Cir.), cert. denied, 414 U.S. 819, 94 S. Ct. 43, 38 L.Ed.2d 51 (1973), this court construed Feres broadly: This is a classic" }, { "docid": "941590", "title": "", "text": "ALBERT V. BRYAN, Circuit Judge: Painful injuries were suffered by Rose L. Schnitzer, plaintiff, while a guest at the motel in Richmond, Virginia, operated by Lawrence Nixon and Earl M. Heath, defendants, when the chair in which she was sitting collapsed. She sued in three counts: negligence in providing a defective chair, violation of the statutory obligations of an innkeeper and breach of implied warranty of the chair’s suitability. Now depending only upon the warranty, she appeals against the District Court’s dismissal of her complaint. It was a bench trial with a jury waived. We find liability and remand for an award of damages. The facts are not in contest. The chair occupied by Rose Schnitzer had been furnished by the motel and was located at the side of the swimming pool. She was engaged in throwing pennies to her children in the water when the chair gave way. It had been purchased by the defendants, along with the motel, approximately a year previously. The design and type of the chair were like those commonly used outdoors. The mishap was due to the failure of the aluminum frame. The trial court found that the frailty was not visible to ordinary examination, and that the defendants were not negligent in inspecting the chair or the space about it. The Court also concluded that the Virginia statute outlining the duties of an innkeeper, § 35-10 of the Code of 1950, as amended, was not breached because the defendants had, as it required, taken “every reasonable precaution to protect the person and property of their guests and boarders.” With all of this we agree. However, we think there was an implied warranty by the defendants that the chair was suitable for its intended purpose. Such a warranty is not dependent upon care in the acquisition or maintenance of the article. A breach occurs when it fails in its function without any reason apparent to the user. Since this is a diversity case, we would follow the Supreme Court of Appeals of Virginia but unfortunately it has not explicitly expressed itself on warranty in" }, { "docid": "2099149", "title": "", "text": "point with Kokkonen”)] see generally Abdelfattah, 787 F.3d 524 (no discussion of Kokkonen); accord Camfield, 248 F.3d 1214; Sealed Appellant, 130 F.3d 695. In any event, Schnitzer was animated by the same rationale that drove Kokkonen. Schnitzer cited to Morrow v. District of Columbia, 417 F.2d 728 (D.C.Cir.1969), which held that ancillary jurisdiction is proper in two circumstances: (1) for the purposes of “judicial economy; disputes related to a single dispute should be resolved in the original forum”; and (2) “to insure that a judgment of a court is given full effect.” Id. at 740 (citations omitted). The Second Circuit’s stated reliance on Morrow provided a basis for its exercise of ancillary jurisdiction over Schnitzer’s motion to expunge: for the purposes of “judicial economy.” Schnitzer, 567 F.2d at 538. Because Schnitzer grappled with the rationale of Kokkonen, its holding remains undisturbed by that case — and indeed, consistent with it. The exercise of ancillary jurisdiction over Doe’s motion serves both of the purposes identified in Morrow and Kokko-nen. First, Doe’s criminal case and her expungement motion are “factually interdependent.” The equities to be balanced in deciding the latter include the severity of her crime and her role in it — all facts that surfaced at her trial, which I presided over. Second, I sentenced Doe to a punishment that was not supposed to continue indefinitely. Accordingly, I have an interest in ensuring that the sentence is “effectuated” properly. As the Second Circuit stated in Field v. United States, “[t]he jurisdiction of a court is not exhausted by the rendition of its judgment, but continues until that judgment is satisfied.” 193 F.2d 86, 90 (2d Cir.1951) (internal quotations marks and citation omitted). Judge Cudahy concluded as much in his opinion in Janik: Although the majority suggests that separation of powers considerations preclude judicial expungement of agency records, it seems to me that the relation of the federal courts to law enforcement agencies is so close as to validate as a practical matter judicial surveillance of closely related agency files. Agency files essentially record events transpiring in the courts, with respect to" }, { "docid": "2099146", "title": "", "text": "discretion of the court.” Id. at 539. To determine whether expungement is warranted, “courts have considered the delicate balancing of the equities between the right of privacy of the individual and the right of law enforcement officials to perform their necessary duties.” Id. (internal quotation marks omitted). The court determined that Schnitzer’s circumstances were not so “extreme” as to merit the relief he was seeking. Id.-, see also id. at 540 (“While courts need not wait for substantial damage to occur before taking remedial equitable action, there is no evidence that harsh damage will indeed accrue.”). District courts within the circuit have frequently invoked Schnitzer’s holding to rule on expungement motions. See, e.g., Joefield v. United States, No. 13-MC-367, 2013 WL 3972650 (E.D.N.Y. Aug. 5, 2013); United States v. Sahadeo, No. 94-CR-3, 2011 WL 5828339, (S.D.N.Y. Nov. 17, 2011); Doe v. Immigration & Customs Enforcement, No. M-54, 2004 WL 1469464 (S.D.N.Y. June 29, 2004); United States v. Doe, No. 71-CR-892, 2004 WL 1124687 (S.D.N.Y. May 20, 2004). In addition, in the years following Schnitzer, several circuit courts similarly held that a district court may use its inherent equitable powers to order the Executive to expunge arrest and/or conviction records in narrow circumstances. However, some circuits, including some of the circuit courts noted above, have ruled that Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994), requires the conclusion that federal courts lack subject matter jurisdiction over applications to expunge convictions on equitable grounds. Nonetheless, other circuits have reaffirmed their original holdings since Kokkonen. See Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524, 535-37 (D.C.Cir.2015); Camfield v. City of Oklahoma City, 248 F.3d 1214, 1234 (10th Cir.2001) (“It is well settled in this circuit that courts have inherent equitable authority to order the ex-pungement of an arrest record or a conviction in rare or extreme circumstances”). I find the shift of some circuits, spurred by Kokkonen, perplexing. Kokkonen concerned the ancillary jurisdiction of a district court over a contract dispute. The Supreme Court held that district courts lack the jurisdiction to hear" }, { "docid": "22908341", "title": "", "text": "of Appellate Procedure is “mandatory and jurisdictional”). In other words, the expiration of the time to file an appeal under Rule 4(b) is a jurisdictional limitation upon the powers of the district court after a judgment of conviction has been entered. See 18 U.S.C. § 3562(b); United States v. Dumont, 936 F.2d 292, 295 (7th Cir.1991) (stating that the limit established by Rule 4(b) is jurisdictional); cf. United States v. Foumai 910 F.2d 617, 620 (9th Cir.1990) (stating that 18 U.S.C. § 3731, which sets the time for appeal, is a jurisdictional limitation which divests the trial court of authority to reconsider a judgment). The Second Circuit and the District of Columbia Circuit have concluded that district courts also have ancillary jurisdiction to expunge criminal records, stemming from their jurisdiction over the underlying criminal prosecution. See Schnitzer, 567 F.2d at 538; Morrow v. District of Columbia, 417 F.2d 728, 740 (D.C.Cir.1969). Ancillary jurisdiction is the power of a court to adjudicate and determine matters incidental to the exercise of its primary jurisdiction over a cause under review. See Black’s Law Dictionary 86 (6th ed.1990). That power extends to proceedings concerned with the pleadings, the processes, the records, or the judgment in the principal case. See id. In Schnitzer, the Second Circuit held that the district court had ancillary jurisdiction to consider the merits of the defendant’s motion to expunge an arrest record following the dismissal of an indictment filed against him. 567 F.2d at 538. The Second Circuit affirmed the denial of the defendant’s motion because he had failed to demonstrate that extreme circumstances justified the exercise of equitable jurisdiction. See id. at 539-40. The court held that the fact that Schnitzer would be asked to explain the circumstances of his arrest was not “harsh or unique.” Id. at 540. The court observed that “[s]uch an explanation may be expected from those about to enter a profession.” Id. No issue was raised in Schnitzer regarding the legality of the arrest or the indictment. In Morrow, the District of Columbia Circuit held that the trial court had ancillary jurisdiction to issue" }, { "docid": "9389218", "title": "", "text": "summary transfer to segregation, and removal of Lt. Col. Garity as presiding officer of the USDB Disciplinary and Adjustment Board. He further seeks a declaratory judgment that appellees violated his constitutional rights. Jurisdiction is sought under the general federal question statute, 28 U.S.C. § 1331. On September 25, 1986, the United States District Court for the District of Kansas granted appellees’ motion to dismiss for lack of subject matter jurisdiction. Describing the action as one for “monetary relief,” the district court found it barred by the Feres doctrine. Thus, the district court concluded that appellees were entitled to the defense of intramilitary immunity. Feres Doctrine A determination of the district court’s subject matter jurisdiction is a question of law reviewable de novo on appeal. Madsen v. United States, 841 F.2d 1011, 1012, (10th Cir.1987). The Supreme Court, in Feres and its progeny, has created a judicial exception to governmental liability for certain damage actions brought by military service members for injuries sustained while on active duty status. The district court’s opinion dismissing this action cited two cases. The first, Feres v. United States, 340 U.S. at 135, 71 S.Ct. at 153, was an action for tort damages brought by a serviceman against the United States for injuries sustained while on active duty. The Court held that the Federal Tort Claims Act [“FTCA”] did not permit service members to maintain suits against the Government for injuries that “arise out of or are in the course of activity incident to service.” 340 U.S. at 146, 71 S.Ct. at 159. The second, Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), was a Bivens action for damages brought by servicemen against their superior officers for constitutional violations. The Court relied on Feres, and held “the unique disciplinary structure of the military establishment and Congress’ activity in the field constitute ‘special factors’ which dictate that it would be inappropriate to provide enlisted military personnel a Bivens-type remedy against their superior officers.” Id. at 304, 103 S.Ct. at 2368. The Supreme Court re-affirmed these cases after Walden filed his brief. In" }, { "docid": "16889354", "title": "", "text": "25 years imprisonment. The court-martial also ordered loss of pay and dishonorable discharge. Joshua began serving his prison sentence with an Army garrison in Germany. He was later transferred to the United States Disciplinary Barracks in Leavenworth, Kansas (“USDB Leavenworth”), operated by the military. In June 2001, when USDB Leavenworth was being down-sized, the Army transferred Joshua to the BOP. He was initially housed at the Federal Correctional Institute in Sandstone, Minnesota, and later transferred to the Federal Correctional Institute in Butner, North Carolina. Because of his military prisoner status, the BOP housed Joshua under a May 1994 “Memorandum of Agreement” between the Army and BOP (the “Memorandum”) regarding “Transfer of Military Prisoners to the Federal Bureau of Prisons.” J.A. 67. Under this agreement, the BOP promised to house up to 500 military prisoners for the Army’s convenience. The BOP has called such prisoners “[cjontractual boarders.” 28 C.F.R. § 550.55(b)(3). Although they become “subject to all [ ]BOP administrative and institutional policies and pro cedures,” the Memorandum states that military prisoners within BOP facilities remain “in permanent custody of the U.S. Army,” which “retain[s] clemency authority.” J.A. 68-69. On March 9, 2009, eight days before Joshua’s scheduled release, the Attorney General certified him as “sexually dangerous” and the government filed a petition for civil commitment under § 4248. Joshua moved to dismiss the petition, claiming that he was not “in the custody of the Bureau of Prisons.” 18 U.S.C. § 4248(a). Reasoning that “custody” in this context referred to legal authority over Joshua’s sentence (“legal custody”) rather than to immediate physical confinement by the BOP (“physical custody”), the district court granted the motion to dismiss. This appeal followed. On February 2, 2010, the government filed a motion in the district court to stay Joshua’s release pending appeal. The district court denied that motion on March 10, 2010, and the government sought similar relief in this court. Recognizing the potential for our decision on the motion to moot the underlying appeal — for Joshua would likely be outside the BOP’s control once released — we granted temporary relief and expedited briefing" }, { "docid": "22980655", "title": "", "text": "MOORE, Circuit Judge: This is an appeal from the denial of a motion to expunge the arrest record and to secure the return of fingerprints and photographs, after dismissal of an indictment against the appellant, Zalmon Schnitzer. Count One of the indictment charged Leonard Fortgang and Schnitzer with conspiring to defraud the Federal Insurance Administration by filing a false claim in violation of 18 U.S.C. § 286. Count Two charged only Fortgang with bribing a government official in connection with his claim, a violation of 18 U.S.C. § 201(b). On August 10, 1976, Schnitzer surrendered to the Federal Bureau of Investigation. He was arraigned, pleaded not guilty, and released on a personal recognizance bond. Prior to his release, Schnitzer was fingerprinted and photographed by the United States Marshal. On September 13, 1976 Fortgang pleaded guilty to Count Two of the indictment. The Government did not seek a superseding indictment against Schnitzer, and instead referred the matter for civil prosecution. Chief Judge Mishler entered an order of dismissal on January 7, 1977. On February 10, 1977, Schnitzer filed a motion for expungement of his arrest record and for the return of all fingerprints and photographs taken upon his arrest. This motion was filed as part of the original criminal action, rather than as a separate civil action. In the accompanying affidavit, defense counsel requested that the order of expungement be directed to the Department of Justice and the Federal Bureau of Investigation. These two organizations were neither served with the motion nor named as respondents. On March 9, 1977 Chief Judge Mishler denied appellant’s motion, concluding that under the facts, “the interests of the government in effective law enforcement outweigh those of the defendant”. (Appendix F at 6). I. The appellant, who introduced the motion below, now contends that the District Court did not have jurisdiction to hear the case. Appellant argues that the District Court lacked jurisdiction because the motion for expungement did not satisfy the requirements for instituting a civil action. Relying principally on United States v. Huss, 520 F.2d 598 (2d Cir. 1975), the appellant claims that ancillary" }, { "docid": "5275371", "title": "", "text": "PALMIERI, District Judge: Richard Dexheimer, a private in the United States Army, sued the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, alleging that while confined to the United States Disciplinary Barracks at Fort Leavenworth, Kansas, he was physically and sexually assaulted by other inmates. The district court, relying on Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), granted summary judgment in favor of the United States, and Dexheimer appeals. We affirm the judgment of the district court. Dexheimer’s alleged injuries occurred while he was a serviceman and the case falls within the Feres holding that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 340 U.S. at 146, 71 S.Ct. at 159. Dexheimer was found guilty of theft at Fort Carson, Colorado, after a general court-martial on December 1, 1975, and was sentenced to 18 months imprisonment, forfeiture of pay, and a bad conduct discharge. Pending mandatory review by the Court of Military Review, which affirmed the sentence on April 23, 1976, Dexheimer was confined to the United States Disciplinary Barracks at Fort Leavenworth, Kansas. After receiving an honorable discharge on October 1, 1976, Dexheimer sued the United States under the Federal Tort Claims Act to recover damages arising out of negligence. Dexheimer alleged that sometime between December 16, 1975 and December 30, 1975, while confined to Fort Leavenworth pursuant to his sentence, he was physically and sexually assaulted by other inmates. The United States filed a motion to dismiss based on sovereign immunity, and the court entered a summary judgment of dismissal, based on its finding that at the time of the incidents in question Dexheimer was on active duty. The resolution of the issues in this appeal stems from the answers to two questions: 1) Was Dexheimer a member of the United States Army when the alleged assaults occurred? and 2) Were the alleged injuries sustained by Dexheimer while confined to the United States" }, { "docid": "14807966", "title": "", "text": "of sovereign immunity, is likewise jurisdictional.” Brown v. United States, 151 F.3d 800, 804 (8th Cir.1998); accord Schnitzer v. Harvey, 389 F.3d 200, 202 (D.C.Cir.2004). In Feres v. United States, the Supreme Court recognized an exception to the FTCA’s broad waiver of sovereign immunity in tort actions, holding that “the Government is not liable ... for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950). This Circuit has developed a three-part incident-to-service test to determine whether an activity giving rise to an injury is, in fact, “incident to service” under Feres. Id. Courts are to consider “the injured service member’s duty status, the site of the injury!,] and the nature of the activity engaged in by the service member at the time of his injury.” Schnitzer, 389 F.3d at 203 (citing Verma v. United States, 19 F.3d 646, 648 (D.C.Cir.1994)). The Supreme Court has cautioned, however, that “[t]he Feres doctrine cannot be reduced to a few bright-line rules” and that “each ease must be examined in light of’ development of the doctrine in caselaw. United States v. Shearer, 473 U.S. 52, 57, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985). The Court will therefore apply the incident-to-service factors with particular consideration given to medical-malpractice precedent of this Circuit. This District held only one year ago that “[m]edical treatment of military personnel at a military hospital undoubtedly satisfies the ‘incident to service’ requirement.” Singleton v. Dep’t of the Army, No. 07-CV-303 (AK), 2007 WL 2601934, at *3 (D.D.C. Sept. 6, 2007). Singleton relied on an earlier case in our District, Antoine v. United States, which held that the mere fact that the plaintiff brought “a tort claim against the Government for injuries alleged to have occurred due to the negligence of military doctors working at military medical facilities and performing official duties” necessitated application of the Feres doctrine to bar recovery. 791 F.Supp. 304, 306 (D.D.C.1992); see also Misko v. United States, 453 F.Supp. 513, 514 (D.D.C.1978) (“[T]ortious acts against an" }, { "docid": "22980662", "title": "", "text": "28, 478 F.2d 938 (1973); where the court determined the sole purpose of the arrests was to harass civil rights workers, United States v. McLeod, 385 F.2d 734 (5th Cir. 1976); where the police misused the police records to the detriment of the defendant, Wheeler v. Goodman, 306 F.Supp. 58 (W.D.N.C. 1969); or where the arrest was proper but was based on a statute later declared unconstitutional, Kowall v. United States, 53 F.R.D. 211 (W.D.Mich.1971). Any particular request for ex-pungement must be examined individually on its merits to determine the proper balancing of the equities. Schnitzer’s arrest and indictment were both legal, as was the law under which he was charged. The dismissal of the indictment did not concede the innocence of Schnitzer. The indictment constitutes a finding of probable cause by the grand jurors; the dismissal means only that the prosecutor did not believe he could establish Schnitzer’s guilt beyond a reasonable doubt. Schnitzer does not claim that his arrest records have been released or that potential misuse of the records is imminent. While courts need not wait for substantial damage to occur before taking remedial equitable action, there is no evidence that harsh damage will indeed accrue. Schnitzer only alleges that retention of the record would create a poignant problem for him because of his status as a rabbinical student. In short, Schnitzer may be asked to explain the circumstances surrounding his arrest. However, his situation is not harsh or unique. Such an explanation may be expected from those about to enter a profession, such as a religious or legal profession. The harm, if any, which may result does not fall within the narrow bounds of the class of cases where expungement has been declared appropriate. Accordingly, the denial of the motion is affirmed. . At the date of oral argument, no civil action had been instituted. . Although the alleged bases for jurisdiction failed in Huss, the court noted that it was “[mjindful of the statutory provision that ‘[djefective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts’, 28 U.S.C. § 1653" }, { "docid": "17086362", "title": "", "text": "28, 1996, which was executed on April 3,1996. At the time he filed the original complaint, Ricks was serving his sentence at the USDB in Forth Leavenworth, Kansas. The USDB is the Army Corrections System maximum custody facility and provides long-term incarceration for enlisted and officer personnel of the armed forces. No civilians are confined at the USDB. The USDB is run by the Commandant, a United States Army military police officer. Military police serve as correctional officers at the USDB, which does not employ civilian guards. At the time of the complaint, all named Defendants were active duty members of the United States Army, serving in their official capacities as Commandant, noncommissioned officers, guards, and administrative support for the USDB. Ricks filed a complaint pro se, later amended, in the United States District Court for the District of Kansas seeking injunctive, mandamus, and monetary relief, as well as administrative sentence credit for alleged violations of his First, Fifth, and Eighth Amendment rights. Ricks alleged, inter alia, that the Defendants’ various violations of his First Amendment rights included retaliation for filing litigation against the Defendants. Ricks also claims that he was sexually assaulted by prison guards during frisk searches on November 8, 1997 and January 13, 1998 and that his administrative complaints were ignored or summarily rejected. The district court initially dismissed all claims except Ricks’ First Amendment retaliation claim for punitive and nominal damages and his sexual assault claims for compensatory and punitive damages. Ricks does not appeal the district court’s dismissal of his other claims. Although the Defendants argued that all claims were barred by the Feres doctrine, the district court stated that it was unable to determine whether Feres applied because Ricks had not indicated when he had been discharged. Thereafter, the Defendants brought another motion to dismiss, renewing their Feres doctrine argument. After additional briefing and further consideration, the district court dismissed Ricks’ remaining claims as barred by Feres. During the pendency of the lawsuit in district court, Ricks was transferred to the custody of the United States Bureau of Prisons. Because Ricks seeks only monetary" }, { "docid": "9389217", "title": "", "text": "claims military officials violated his fifth and fourteenth amendment rights, military regulations, and USDB regulations. Walden was placed in segregation housing without a hearing, and received two administrative hearings on his disciplinary offenses which resulted in forfeiture of good time credits. Walden alleges he did not receive written notice of the time and place of the first hearing. He further alleges he did not receive an independent review of the disciplinary board’s findings because one of the appellees who testified against him also served on the appellate review panel which heard his complaint. At the second hearing, Walden alleges he was not permitted to call a witness on his behalf. He further contends the disciplinary board was not impartial because the board members were defendants in a different civil suit he had previously filed. All of these alleged unconstitutional acts occurred while Walden was a service member prior to his discharge. Walden seeks money damages from the individual defendants. He also seeks injunctive relief such as restoration of his good time credits, prohibition of his summary transfer to segregation, and removal of Lt. Col. Garity as presiding officer of the USDB Disciplinary and Adjustment Board. He further seeks a declaratory judgment that appellees violated his constitutional rights. Jurisdiction is sought under the general federal question statute, 28 U.S.C. § 1331. On September 25, 1986, the United States District Court for the District of Kansas granted appellees’ motion to dismiss for lack of subject matter jurisdiction. Describing the action as one for “monetary relief,” the district court found it barred by the Feres doctrine. Thus, the district court concluded that appellees were entitled to the defense of intramilitary immunity. Feres Doctrine A determination of the district court’s subject matter jurisdiction is a question of law reviewable de novo on appeal. Madsen v. United States, 841 F.2d 1011, 1012, (10th Cir.1987). The Supreme Court, in Feres and its progeny, has created a judicial exception to governmental liability for certain damage actions brought by military service members for injuries sustained while on active duty status. The district court’s opinion dismissing this action cited" }, { "docid": "14807965", "title": "", "text": "of the place where the act or omission occurred. § 1346(b)(1). This case falls within the requirements of the FTCA. The plaintiffs commenced this action against the United States (see Compl.) for money damages (Compl. ¶ 42). The plaintiffs’ claim accrued in 2003 (long after January 1, 1945). (See Compl. ¶¶ 8-30.) The plaintiffs bring their wrongful death and survival actions based on the alleged negligence of medical personnel employed by the Government, where such negligence occurred in the scope of such employment. (See Compl. ¶¶ 31-40.) It is plain that were the defendant not the United States, but instead a private person, such person would not be immune from suit. Therefore, the Court has jurisdiction under § 1346(b)(1). b. The Feres Doctrine Does Not Strip the Court of Subject-Matter Jurisdiction in This Case. “Sovereign immunity is jurisdictional in nature.” FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994), quoted in Trudeau v. FTC, 456 F.3d 178, 185 (D.C.Cir.2006). “The Feres doctrine, which limits the scope of the FTCA’s waiver of sovereign immunity, is likewise jurisdictional.” Brown v. United States, 151 F.3d 800, 804 (8th Cir.1998); accord Schnitzer v. Harvey, 389 F.3d 200, 202 (D.C.Cir.2004). In Feres v. United States, the Supreme Court recognized an exception to the FTCA’s broad waiver of sovereign immunity in tort actions, holding that “the Government is not liable ... for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950). This Circuit has developed a three-part incident-to-service test to determine whether an activity giving rise to an injury is, in fact, “incident to service” under Feres. Id. Courts are to consider “the injured service member’s duty status, the site of the injury!,] and the nature of the activity engaged in by the service member at the time of his injury.” Schnitzer, 389 F.3d at 203 (citing Verma v. United States, 19 F.3d 646, 648 (D.C.Cir.1994)). The Supreme Court has cautioned, however, that “[t]he Feres doctrine cannot be reduced to" }, { "docid": "2099145", "title": "", "text": "Second Circuit precedent establishes that “expungement lies within the equitable discretion of the [district] court.” Schnitzer, 567 F.2d at 539. Because I am bound by that precedent, Doe’s motion will be heard. Schnitzer concerned a motion to expunge an individual’s arrest record and to secure the return of his fingerprints and photographs following the dismissal of an indictment against him. Id. at 537. The district court denied the motion upon examining the underlying facts, stating, “the interests of the government in effective law enforcement outweigh those of the defendant.” Id. at 538 (internal quotation marks omitted). The government appealed, arguing that- the district court did not have jurisdiction to hear the motion in the first place. Id. The Second Circuit disagreed, holding that the district court had ancillary jurisdiction over the question. Id. Acknowledging that “[t]he Attorney General is required by 28 U.S.C. § 534(a) to acquire and retain criminal identification records,” and that “[n]o federal statute provides for expungement of an arrest record,” the Second Circuit stated that “[ijnstead, ex-pungement lies within the equitable discretion of the court.” Id. at 539. To determine whether expungement is warranted, “courts have considered the delicate balancing of the equities between the right of privacy of the individual and the right of law enforcement officials to perform their necessary duties.” Id. (internal quotation marks omitted). The court determined that Schnitzer’s circumstances were not so “extreme” as to merit the relief he was seeking. Id.-, see also id. at 540 (“While courts need not wait for substantial damage to occur before taking remedial equitable action, there is no evidence that harsh damage will indeed accrue.”). District courts within the circuit have frequently invoked Schnitzer’s holding to rule on expungement motions. See, e.g., Joefield v. United States, No. 13-MC-367, 2013 WL 3972650 (E.D.N.Y. Aug. 5, 2013); United States v. Sahadeo, No. 94-CR-3, 2011 WL 5828339, (S.D.N.Y. Nov. 17, 2011); Doe v. Immigration & Customs Enforcement, No. M-54, 2004 WL 1469464 (S.D.N.Y. June 29, 2004); United States v. Doe, No. 71-CR-892, 2004 WL 1124687 (S.D.N.Y. May 20, 2004). In addition, in the years following Schnitzer, several" }, { "docid": "17086361", "title": "", "text": "MURPHY, Circuit Judge. I. INTRODUCTION Plaintiff-Appellant John M. Ricks appeals an order dismissing his claims brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics against Defendants Appellees for alleged constitutional violations incurred while incarcerated at the United States Disciplinary Barracks (USDB). See Bivens, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The issue presented is whether the Feres doctrine bars a mili-’ tary prisoner’s Bivens claims for damages arising from alleged injuries sustained after the prisoner has received a complete punitive discharge from service. See Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). We have jurisdiction under 28 U.S.C. § 1291. Because Ricks’ Bivens claims arise from events incident to his military service, this court affirms. II. BACKGROUND Ricks originally enlisted in the United States Air Force. After a trial and conviction for violations of Articles 85 and 134 of the Uniform Code of Military Justice (UCMJ), a general court-martial sentenced Ricks to fifteen years’ imprisonment. Ricks received a dishonorable discharge on March 28, 1996, which was executed on April 3,1996. At the time he filed the original complaint, Ricks was serving his sentence at the USDB in Forth Leavenworth, Kansas. The USDB is the Army Corrections System maximum custody facility and provides long-term incarceration for enlisted and officer personnel of the armed forces. No civilians are confined at the USDB. The USDB is run by the Commandant, a United States Army military police officer. Military police serve as correctional officers at the USDB, which does not employ civilian guards. At the time of the complaint, all named Defendants were active duty members of the United States Army, serving in their official capacities as Commandant, noncommissioned officers, guards, and administrative support for the USDB. Ricks filed a complaint pro se, later amended, in the United States District Court for the District of Kansas seeking injunctive, mandamus, and monetary relief, as well as administrative sentence credit for alleged violations of his First, Fifth, and Eighth Amendment rights. Ricks alleged, inter alia, that the Defendants’ various violations of his First" }, { "docid": "22908342", "title": "", "text": "under review. See Black’s Law Dictionary 86 (6th ed.1990). That power extends to proceedings concerned with the pleadings, the processes, the records, or the judgment in the principal case. See id. In Schnitzer, the Second Circuit held that the district court had ancillary jurisdiction to consider the merits of the defendant’s motion to expunge an arrest record following the dismissal of an indictment filed against him. 567 F.2d at 538. The Second Circuit affirmed the denial of the defendant’s motion because he had failed to demonstrate that extreme circumstances justified the exercise of equitable jurisdiction. See id. at 539-40. The court held that the fact that Schnitzer would be asked to explain the circumstances of his arrest was not “harsh or unique.” Id. at 540. The court observed that “[s]uch an explanation may be expected from those about to enter a profession.” Id. No issue was raised in Schnitzer regarding the legality of the arrest or the indictment. In Morrow, the District of Columbia Circuit held that the trial court had ancillary jurisdiction to issue an order regarding the dissemination of the defendant’s arrest record. 417 F.2d at 740. There, the defendant was arrested for disorderly conduct for swearing at a police officer. See id. at 730. The Court of General Sessions for the District of Columbia dismissed the case because it had been brought by the Corporation Counsel of the District of Columbia rather than by the United States Attorney. See id. The trial court then granted the defendant’s motion for an order requiring that the record of his arrest be expunged. See id. No question was presented in Morrow regarding the legality of the defendant’s arrest. Since the publication of Schnitzer and Morrow, we have assumed without deciding that district courts may order the ex-pungement of criminal records as part of their ancillary jurisdiction. See Smith, 940 F.2d at 396; United States v. G, 774 F.2d 1392, 1394 (9th Cir.1985). We must now determine, as a matter of first impression in this circuit, whether a district court has ancillary jurisdiction to expunge criminal records, and if so whether" }, { "docid": "9389216", "title": "", "text": "BURCIAGA, District Judge. This appeal presents the issue of whether a military prisoner is barred from bringing a 28 U.S.C. § 1331 general federal question action seeking damages, declaratory, and injunctive relief for alleged due process violations by military officials. Plaintiff-Appellant, Frank Nitty Walden II, filed a pro se complaint alleging defendants-appellees violated his rights to due process by the manner in which they conducted disciplinary proceedings against him. Appellees are individual military officials. This appeal is from the district court’s dismissal of Walden’s case for lack of subject matter jurisdiction because the action was barred by the doctrine established in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Walden argues that the district court erred in finding the military officials immune from liability. Walden is an inmate at the United States Disciplinary Barracks [“USDB”] in Fort Leavenworth, Kansas. Walden was convicted by a court-martial for military crimes committed while he was an active duty member of the United States Army, and sentenced to imprisonment and a discharge. Walden claims military officials violated his fifth and fourteenth amendment rights, military regulations, and USDB regulations. Walden was placed in segregation housing without a hearing, and received two administrative hearings on his disciplinary offenses which resulted in forfeiture of good time credits. Walden alleges he did not receive written notice of the time and place of the first hearing. He further alleges he did not receive an independent review of the disciplinary board’s findings because one of the appellees who testified against him also served on the appellate review panel which heard his complaint. At the second hearing, Walden alleges he was not permitted to call a witness on his behalf. He further contends the disciplinary board was not impartial because the board members were defendants in a different civil suit he had previously filed. All of these alleged unconstitutional acts occurred while Walden was a service member prior to his discharge. Walden seeks money damages from the individual defendants. He also seeks injunctive relief such as restoration of his good time credits, prohibition of his" }, { "docid": "16889353", "title": "", "text": "Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge GREGORY and Judge AGEE concurred. OPINION DUNCAN, Circuit Judge: Section 4248 of Title 18, enacted in the Adam Walsh Child Protection and Safety Act of 2006, authorizes the civil commitment of “sexually dangerous” persons “in the custody of the Bureau of Prisons.” 18 U.S.C. § 4248(a). The district court dismissed the government’s petition for civil commitment under § 4248 upon finding that an individual convicted and sentenced by United States Army court-martial but housed within a facility operated by the United States Bureau of Prisons (“BOP”) — what the BOP calls a “contractual boarder” — was not “in the custody of the Bureau of Prisons” under the statute. For the reasons that follow, we affirm. I. Appellee Benjamin Barnard Joshua was an Army officer stationed in Germany. He was prosecuted by military court-martial in 1995 for sexually molesting children in violation of the Uniform Code of Military Justice (the “UCMJ”), 10 U.S.C. §§ 801-946. After Joshua pleaded guilty, the court-martial sentenced him to 25 years imprisonment. The court-martial also ordered loss of pay and dishonorable discharge. Joshua began serving his prison sentence with an Army garrison in Germany. He was later transferred to the United States Disciplinary Barracks in Leavenworth, Kansas (“USDB Leavenworth”), operated by the military. In June 2001, when USDB Leavenworth was being down-sized, the Army transferred Joshua to the BOP. He was initially housed at the Federal Correctional Institute in Sandstone, Minnesota, and later transferred to the Federal Correctional Institute in Butner, North Carolina. Because of his military prisoner status, the BOP housed Joshua under a May 1994 “Memorandum of Agreement” between the Army and BOP (the “Memorandum”) regarding “Transfer of Military Prisoners to the Federal Bureau of Prisons.” J.A. 67. Under this agreement, the BOP promised to house up to 500 military prisoners for the Army’s convenience. The BOP has called such prisoners “[cjontractual boarders.” 28 C.F.R. § 550.55(b)(3). Although they become “subject to all [ ]BOP administrative and institutional policies and pro cedures,” the Memorandum states that military prisoners within BOP facilities remain" }, { "docid": "3651786", "title": "", "text": "by occupants or housemaids. The jury was warranted in finding that this was not reasonable care under the circumstances. The problem arises with respect to the warranty count. Having explained negligence with respect to Count 1, the court charged the jury, succinctly, as follows. “In order to recover for a breach of the implied warranty of suitability, the plaintiff must prove by a preponderance of the evidence as follows: One, that the fixtures or equipment were defective and unfit for ordinary purposes for which they were to be used, and, two, that as a proximate result the plaintiff was injured.” There was no requirement, in other words, of a showing of unreasonable conduct, or lack of care. Plaintiff would justify this submission by our holding in Schnitzer v. Nixon, 439 F.2d 940 (4 Cir.1971). There a motel guest sat in what proved to be a defective chair, and was injured when it collapsed. The case was tried without jury. The court found defendants were not negligent, and dismissed the complaint. In reversing we said, “Since this is a diversity case, we would follow the Supreme Court of Appeals of Virginia but unfortunately it has not explicitly expressed itself on warranty in the instant factual environment. “Certainly, however, nothing in Virginia’s jurisprudence, statutory or decisional, denies the availability of the implied war ranty — devoid of negligence — for a guest’s recovery from his innkeeper for injuries caused by a weak fixture provided for the guest’s use. Such an action lies in Virginia, appellees concede, for breach of implied warranty of merchantability or suitability in the sale of goods, Gleason & Co. v. International Harvester, 197 Va. 255, 88 S.E.2d 904 (1955), and for the wholesomeness of food and drink in its sale, Levy v. Paul, 207 Va. 100, 147 S.E.2d 722 (1966). These doctrines in reason and logic dictate recognition of actionable implied warranty on the part of the innkeeper.” (Emphasis in orig.) 439 F.2d at 941. The Schnitzer court then discussed an English case holding an innkeeper to an implied warranty of fitness, and concluded that two Virginia cases" } ]

[ { "docid": "20783488", "title": "", "text": "first, the judge concluded that while the prosecutor’s statement was error, it was harmless beyond a reasonable doubt when considered in the totality of the circumstances. As to the second, the judge concluded that the New York “justification” statute does not make the distinction contended for by Washington, and so the issue of equal protection did not arise. We agree with the conclusions of the district judge regarding these points, substantially for the reasons given in his opinion. Accordingly, we find no merit in the cross-appeal. The judgment of the district court, granting Washington’s amended petition for a writ of habeas corpus, is therefore vacated. The action is remanded to the district court with directions to dismiss the petition without prejudice to refiling after Washington has exhausted any appropriate state remedy. . Intent is not a necessary element of the crime of criminal possession of a weapon in the third degree, as charged in this case. See N.Y. Penal Law § 265.02(4) (possession of a loaded firearm). . In Callahan, the defendant made no objection at trial respecting the jury instruction on which habeas relief was later granted. 605 F.2d at 72. He made an objection to the instruction only in the Appellate Division, id. at 73-74 n.6, which then affirmed without opinion. Leave to appeal to the New York Court of Appeals was denied. Id. at 72. We note that appellant suggests that Washington did not adequately raise his objection to the jury instructions even in the Appellate Division, since he “relegated this argument ... to but a single, one-sentence footnote in his brief.” We do not accept the remarkable premise that the Appellate Division does not read the footnotes of briefs submitted to it. Moreover, the argument was in fact raised in the main text of the brief. . See Getch, supra, 50 N.Y.2d at 466, 429 N.Y.S.2d 579, 407 N.E.2d 425 (observing that New York State courts in the future “no doubt will avoid the use of phrases which could be construed or even misconstrued as shifting any part of the burden to the defendant”)." } ]

[ { "docid": "1042609", "title": "", "text": "Nor do we think a justification charge would have affected the outcome if a jury found that the prosecution proved all the elements of second degree murder and a jury proceeded to a self-defense claim. For a jury to find that the prosecution met its burden, [it] would have had to reject significant aspects of Blazic’s account. Certainly, if a jury rejected the majority of Blazic’s testimony, a justification charge would not have affected the jury’s verdict since [the] testimony was the only evidence supporting a justification claim. Id. at 542-43. While Blazic’s own testimony was the only evidence supporting a justification charge, Jackson’s claim relies not on his own testimony — he did not testi fy at the trial — but rather on the statements and testimony of numerous witnesses, including state witnesses, as well as on his videotaped confession. This evidence would have provided ample grounds for a jury to credit Jackson’s justification defense, even if it found that the prosecution otherwise met its burden. Second, the jury convicted Blazic of second degree murder, necessarily suggesting that Blazic intended to commit murder. See id. at 542-43. But Jackson’s jury acquitted him of second degree murder while convicting him of the lesser offense of second degree manslaughter, which only required a showing that Jackson “recklessly” caused Brown’s death. N.Y. Penal Law § 125.15. In sharp contrast to Blazic, the probabilities are substantial that, if given a justification charge, Jackson’s jury might well have acquitted. As in Davis, therefore, the failure to charge Jackson was “an error of immense importance” that so infected the entire trial as to deny due process. 270 F.3d at 132. In holding that the trial court’s failure to instruct the jury on justification “infected the entire trial,” we find that it tainted not only the jury’s consideration of the homicide charge, but also its evaluation of the weapons possession charge. The weapons possession statute provides: “A person is guilty of criminal possession of a weapon in the second degree when, with intent to use the same unlawfully against another ... [h]e possesses a loaded firearm.”" }, { "docid": "1042608", "title": "", "text": "degree murder on the basis of his counsel’s alternative argument that the shooting was accidental suggests that the jury was, in fact, open to crediting Jackson’s version of events. “Taking all this into account, there is a substantial likelihood that a properly instructed jury would have found in [Jackson’s] favor on the homicide charge.” Davis, 270 F.3d at 131. As we said in Davis, to deny a defendant the opportunity to raise a “highly credible defense” to a charge of homicide is nothing short of a “catastrophic” error. Id. at 131-32. The State argues that a different result is compelled by Blazic v. Henderson, 900 F.2d 534 (2d Cir.1990), where we held that although the state court erred under New York law in failing to give a justification instruction, the error did not violate due process because it “would not have affected the jury’s verdict,” id. at 542. Our case differs from Blazic in two critical respects. First, in explaining in Blazic why the failure to give a justification instruction was harmless error, we said: Nor do we think a justification charge would have affected the outcome if a jury found that the prosecution proved all the elements of second degree murder and a jury proceeded to a self-defense claim. For a jury to find that the prosecution met its burden, [it] would have had to reject significant aspects of Blazic’s account. Certainly, if a jury rejected the majority of Blazic’s testimony, a justification charge would not have affected the jury’s verdict since [the] testimony was the only evidence supporting a justification claim. Id. at 542-43. While Blazic’s own testimony was the only evidence supporting a justification charge, Jackson’s claim relies not on his own testimony — he did not testi fy at the trial — but rather on the statements and testimony of numerous witnesses, including state witnesses, as well as on his videotaped confession. This evidence would have provided ample grounds for a jury to credit Jackson’s justification defense, even if it found that the prosecution otherwise met its burden. Second, the jury convicted Blazic of second degree" }, { "docid": "23086843", "title": "", "text": "position. Even if Brown did not know that he could have retreated with complete safety before the first shot, nothing could justify Brown’s continued shooting of the victim after that initial shot. Of. People v. Arlequin, 625 N.Y.S.2d 613, 614, 214 A.D.2d 747, 748 (2d Dep’t 1995) (concluding that where “defendant shot the victim after obtaining sole control of the gun, when the defendant no longer had a reasonable belief that he was in mortal danger and could have retreated in safety,” prosecution had disproved defense of justification beyond reasonable doubt); People v. Alvarez, 607 N.Y.S.2d 137, 138, 201 A.D.2d 487, 487-88 (2d Dep’t 1994). The entirety of Brown’s proffered testimony would have concerned his past encounters with Barr and how such experiences caused him to fear for his life during their fight on the evening of the shooting. Brown’s testimony could not have supported a reasonable inference in his favor on the retreat element of the justification defense, and the evidence before the jury overwhelmingly established that Brown could have safely retreated without using deadly force. Since the only testimony Brown claims he wanted to present would not have aided his justification defense, Brown was not prejudiced by the purported failure of his trial counsel to inform him of his personal right to testify. Conclusion Because there is no reasonable probability that the result of the trial would have been different, even if Brown had testified, as he claims he wished to do, the judgment of the District Court is affirmed. . In New York, \"justification is a defense, not an affirmative defense, and therefore the People bear the burden of disproving it beyond a reasonable doubt.\" See In re Y.K., 87 N.Y.2d 430, 433, 639 N.Y.S.2d 1001, 1003, 663 N.E.2d 313 (1996). . Several circuits have ruled that although a trial judge generally is not required \"to advise the defendant of the right to testify or to obtain an on-the-record waiver of such right,” Pennycooke, 65 F.3d at 13, \"judicial interjection through a direct colloquy with the defendant may be required” in “exceptional, narrowly defined circumstances,” id. at" }, { "docid": "17860970", "title": "", "text": "medical examiner; (3) did not object to the admission of hearsay statements; (4) failed to cross-examine certain witnesses and inadequately or ineptly cross-examined others; (5) failed to make a Sandoval application (People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 (1974)) to preclude cross-examination of petitioner concerning a prior youthful offender adjudication and then improperly elicited from petitioner the existence of that prior conviction; and (6) neglected to rehabilitate petitioner on redirect. Petitioner also claimed that the prosecutor’s summation was improper. The Appellate Division affirmed the conviction on December 3, 1990. People v. Jeremiah, 168 A.D.2d 458, 562 N.Y.S.2d 577 (2d Dep’t 1990). The court rejected the claim of ineffective assistance, finding that defense counsel provided “meaningful” representation, when viewed in its entirety and in light of the circumstances presented. The court specifically rejected the argument that defense counsel had improperly conceded petitioner’s responsibility for the shooting, stating: At trial, the People introduced into evidence, in relevant part, the defendant’s statement to the police in which he admitted that he shot the victim in self-defense, as well as eyewitness testimony •concerning the shooting. Consequently, defense counsel’s trial strategy was to concede that the.defendant shot the victim, but to assert the defense of justification. This court will not, with the benefit of hindsight, second-guess an attorney’s losing trial strategy, even where, as here, it included an admission to the actual shooting and the unlawful possession of the gun used to shoot the victim, (citations omitted) Leave to appeal to the New York Court of Appeals was denied. People v. Jeremiah, 77 N.Y.2d 907, 569 N.Y.S.2d 939, 5.72 N.E.2d 622 (1991). Petitioner, acting pro se, then moved in Supreme Court, Kings County, to vacate his conviction pursuant to N.Y.Criminal Procedure Law § 440.10 on the ground that the prosecution failed to turn over potentially exculpatory evidence to him prior to trial. Specifically, petitioner claimed that he was prejudiced by the destruction of the original notes made by the police officer who testified at trial to the petitioner’s admissions, in violation of People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d" }, { "docid": "16817556", "title": "", "text": "to harm and complied with all the requirements of murder as I have charged them to you, then you must convict the defendant. {Id. 739-40.) The trial court did not inform the jury that under New York law, once the defense of justification had been raised, the prosecution bore the burden of disproving the defense beyond a reasonable doubt. See N.Y. Penal Law § 25.00(1) (McKinney 1975); People v. Reed, 40 N.Y.2d 204, 209, 386 N.Y.S.2d 371, 375, 352 N.E.2d 558, 561 (1976). Upon the prosecutor’s objection, the court recharged the jury to instruct that the prosecution’s burden was to prove that the defendant intended to “kill” the deceased, not merely to “harm” him. Petitioner’s attorneys objected to this change but did not express any other objection to the charge on justification. They did not mention the court’s failure to inform the jury of the prosecution’s burden of proof on this issue. The jury found petitioner guilty of second degree murder, and he was sentenced to an indeterminate term of imprisonment of from twenty years to life. Represented by new counsel, petitioner appealed to the Appellate Division. His new attorney filed a 54-page brief arguing five points: (1) that the evidence was insufficient, (2) that the prosecutor’s summation had been unfair, (3) that the trial court should have given a lesser-included-offense charge, (4) that the trial court had failed to give the jury proper instruction on the burden of proof as to the issue of justification, and (5) that the sentence given petitioner was excessive. Counsel did not argue that the language of the trial court’s instruction on intent had impermissibly shifted the burden of proof to petitioner. The argument on the justification point was as follows: In its charge to the jury, the court informed the jury that if it believed the defendant, it must acquit. (739, 747[.]) However, at no time did the court inform the jury that the People had the burden of disproving the defense of justification beyond a reasonable doubt. People v. Robinson, 47 AD 2d 618 [364 N.Y.S.2d 180] (1st Dept., 1975); People v." }, { "docid": "1042610", "title": "", "text": "murder, necessarily suggesting that Blazic intended to commit murder. See id. at 542-43. But Jackson’s jury acquitted him of second degree murder while convicting him of the lesser offense of second degree manslaughter, which only required a showing that Jackson “recklessly” caused Brown’s death. N.Y. Penal Law § 125.15. In sharp contrast to Blazic, the probabilities are substantial that, if given a justification charge, Jackson’s jury might well have acquitted. As in Davis, therefore, the failure to charge Jackson was “an error of immense importance” that so infected the entire trial as to deny due process. 270 F.3d at 132. In holding that the trial court’s failure to instruct the jury on justification “infected the entire trial,” we find that it tainted not only the jury’s consideration of the homicide charge, but also its evaluation of the weapons possession charge. The weapons possession statute provides: “A person is guilty of criminal possession of a weapon in the second degree when, with intent to use the same unlawfully against another ... [h]e possesses a loaded firearm.” N.Y. Penal Law § 265.03 (McKinney 1997). Under New York law, justification under Section 35.15 is not a defense to second degree criminal possession of a weapon. See People v. Pons, 68 N.Y.2d 264, 265, 508 N.Y.S.2d 403, 501 N.E.2d 11 (1986). Whereas the defense of justification excuses the use of physical force in the context of a homicide, it is the act of possessing a weapon with intent to use it unlawfully, not the actual use of the weapon, that is at the heart of a weapons possession offense. See Pons, 68 N.Y.2d at 267, 508 N.Y.S.2d 403, 501 N.E.2d 11. Thus, “it does not follow that because defendant was justified in the actual shooting of the weapon under the particular circumstances existing at that moment, he lacked the intent to use the weapon unlawfully during the continuum of time that he possessed it prior to the shooting.” Pons, 68 N.Y.2d at 267-68, 508 N.Y.S.2d 403, 501 N.E.2d 11; see also Davis, 270 F.3d at 134 (explaining that under the rule in Pons, “[a]" }, { "docid": "1042592", "title": "", "text": "of the issue,” the Court deemed the argument waived because it had only been raised for the first time in petitioner’s merits brief to the Court. Id. at 34, 124 S.Ct. 1347. The question Baldwin left open is now before us: Where state and federal claims share the same legal standard, has a federal claim been “fairly presented” when the state court necessarily rejects the federal claim in ruling on the state claim? In his brief to the Appellate Division, Jackson relied on state law to argue that the trial court erred in refusing to instruct the jury on the defense of justification because, on a reasonable view of the evidence, the fact-finder might have decided his actions were justified. See People v. Padgett, 60 N.Y.2d 142, 468 N.Y.S.2d 854, 456 N.E.2d 795 (1983); N.Y. Penal Law § 35.15(2). The Appellate Division, in turn, held that “[cjontrary to the defendant’s contention, no reasonable view of the evidence supports a justification charge and, thus, the trial court properly declined to give it (see Penal Law § 35.15[2]).” People v. Jackson, 266 A.D.2d at 476, 698 N.Y.S.2d 887. Had Jackson instead argued that the trial court’s failure to charge justification denied him due process under the Fourteenth Amendment, the Appellate Division’s inquiry would have been the same. As we said in Davis v. Strack, 270 F.3d 111, 123 (2d Cir.2001), “a finding that the petitioner was erroneously deprived of a jury instruction to which he was entitled under state law is the first step in the determination whether that error violated the petitioner’s federal due process rights.” This first step requires asking whether, “on any reasonable view of the evidence, the fact finder might have decided that the defendant’s actions were justified” pursuant to New York Penal Law § 35.15. Id. at 124 (quoting Padgett, 60 N.Y.2d at 144-45, 468 N.Y.S.2d 854, 456 N.E.2d 795). The second step asks whether the failure to give such a charge was sufficiently harmful to make the conviction unfair. See id. at 124 (citing Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 38 L.Ed.2d" }, { "docid": "6010633", "title": "", "text": "State Court Appeals and Federal Habeas Petition Vera appealed his conviction to the Appellate Division, First Department. (Petition, ¶ 9.) He argued that (1) the state failed to disprove, beyond a reasonable doubt, his justification defense, and (2) he was denied his due process right to a fair trial by (a) the trial court’s imbalanced interested witness charge and (b) the prosecutor’s expression of his personal belief in Vera’s guilt. (Petition, ¶ 9 & Exs. A-B; see Vera’s App.Div. Brief.) The Appellate Division affirmed Vera’s conviction. People v. Vera, 182 A.D.2d 574, 585 N.Y.S.2d 700 (1st Dep’t 1992). As to Vera’s first claim, the Appellate Division held: We find that the People disproved the defense of justification beyond a reasonable doubt. Viewing the evidence in the light most favorable to the prosecution and giving it the benefit of every reasonable inference, the record establishes that defendant could not have reasonably believed that the deceased was using or about to use deadly physical force which would have justified defendant’s conduct. Id. at 574-75, 585 N.Y.S.2d at 700 (citations omitted). As to Vera’s remaining claims, the Appellate Division held, in full: With respect to defendant’s remaining claims, both of which are wholly unpreserved, reversal is not warranted in the interest of justice. The court’s charge on interested witnesses was, on the whole, fair, and made clear that it was up to the jury to determine whether any of the witnesses could be considered “interested” in the outcome of the ease. The summation remarks of which the defendant now complains were, when read in context, clearly argument, and could not have been misinterpreted as the personal belief of the prosecutor. Id. at 575, 585 N.Y.S.2d at 700 (emphasis added). The New York Court of Appeals denied leave to appeal on September 9,1992. People v. Vera, 80 N.Y.2d 935, 589 N.Y.S.2d 862, 603 N.E.2d 967 (1992). (See also Petition, ¶ 9(e).) Vera’s pro se habeas corpus petition raises the same issues that were presented to the Appellate Division. ANALYSIS I. A RATIONAL JURY COULD HAVE FOUND PETITIONER VERA GUILTY OF MANSLAUGHTER BEYOND A REASONABLE" }, { "docid": "22070453", "title": "", "text": "his aunt to search his bedroom, and found a .22 caliber pistol and particles of sand in a bag. A ballistics expert testified at trial that the fatal shot had been fired from that .22 caliber pistol. Sellan was sentenced principally to an indeterminate incarceration term of twenty-five years to life for his second degree murder conviction, a concurrent term of eight and one-third years to twenty-five years for the first degree manslaughter conviction, and concurrent shorter terms for the other convictions. On direct appeal, Sellaris appellate counsel raised two arguments: (1) the prosecutor improperly cross-examined him with regard to evidence of Sellaris gang membership, and (2) the prosecutor improperly attempted to refresh the defendant’s recollection of a prior bad act. Sel-laris appellate counsel, however, did not raise an issue on direct appeal that had been properly preserved at trial: whether the trial court erred when it failed to charge murder in the second degree and first degree manslaughter in the alternative because the mental state elements were mutually exclusive. The Appellate Division affirmed Sellaris conviction, see People v. Sellan, 533 N.Y.S.2d 109, 143 A.D.2d 690 (1988), and leave to appeal to the Court of Appeals was denied. See People v. Sellan, 73 N.Y.2d 860, 537 N.Y.S.2d 506, 534 N.E.2d 344 (1988). On the theory that appellate counsel should have raised this argument, Sellan sought a writ of coram nobis in state court on the basis of ineffective assistance of counsel. He argued that the manslaughter charge required the jury to find that he intended to cause serious physical injury to his victim, while the murder charge required a finding that he acted with an extreme state of recklessness in causing that same victim’s death. Sellan cited a then-recent New York Court of Appeals decision, People v. Gallagher, 69 N.Y.2d 525, 516 N.Y.S.2d 174, 508 N.E.2d 909 (1987), for this proposition. In Gallagher, the Court of Appeals vacated a defendant’s conviction and ordered a new trial, holding that he could not be convicted of both intentional murder and reckless manslaughter for the same act “because guilt of one necessarily negates" }, { "docid": "21547833", "title": "", "text": "insufficient to disprove a defense of justification; (ii) the prosecutor did not sufficiently develop before, or adequately present to, the grand jury allegedly exculpatory evidence, particularly information concerning the awl or ice pick recovered at the scene; (iii) the prosecutor prejudiced the grand jury by including in the case caption an alias for appellant; and (iv) the instructions to the grand jury did not adequately address the law of justification. The Supreme Court, after inspecting the grand jury minutes, denied the motion. A trial followed and resulted in a hung jury. Before retrial, appellant again moved to dismiss the indictment, this time alleging that the prosecutor had presented the grand jury with erroneous medical testimony to the effect that the victim had been shot in the back. The Supreme Court again examined the grand jury minutes and again denied the motion. After a second trial, a jury convicted Lopez of manslaughter. Lopez’s appeal from his conviction challenged the indictment and the conduct of the trial. His conviction was affirmed by the Appellate Division, which reported in detail its own examination of the grand jury minutes before rejecting the challenge to the indictment. People v. Lopez, 113 A.D.2d 475, 478-79, 497 N.Y.S.2d 32 (2d Dept.1985). Leave to appeal to the Court of Appeals was denied, People v. Lopez, 67 N.Y.2d 946, 494 N.E.2d 124, 502 N.Y.S.2d 1039 (1986), and a petition for a writ of habeas corpus followed, again alleging, inter alia, defects in the grand jury proceeding leading to his indictment. In a memorandum opinion filed May 27, 1988, Judge Korman rejected Lopez’s claims and dismissed the petition. In particular, Judge Korman, relying upon United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), held that claims of deficiencies in a state grand jury proceeding cannot support a collateral attack under 28 U.S.C. § 2254. Subsequent to our decision in Saldana v. New York, 850 F.2d 117 (2d Cir.1988), however, he granted a certificate of probable cause so that we might determine whether Saldana allowed claims of deficiencies in grand jury proceedings to be raised in" }, { "docid": "1064917", "title": "", "text": "court’s justification charge with respect to defense of a third person, when viewed as a whole, adequately conveyed the proper standards to be applied.” People v. DiGuglielmo, 258 A.D.2d 591, 592, 686 N.Y.S.2d 443, 444 (2d Dep’t), lv. denied, 93 N.Y.2d 923, 693 N.Y.S.2d 507, 715 N.E.2d 510 (1999). The Appellate Division also concluded that the evidence was “ample” to permit the jury to find beyond a reasonable doubt that when DiGuglielmo shot Campbell, DiGuglielmo did not reasonably believe Campbell was threatening DiGuglielmo’s father. Id. The New York Court of Appeals denied permission to appeal further. See People v. DiGuglielmo, 93 N.Y.2d 923, 693 N.Y.S.2d 507, 715 N.E.2d 510 (1999). DiGuglielmo’s first federal habeas petition pursued, inter alia, his present challenges to the trial court’s instructions on justification and the prosecutor’s summation. The district court denied the petition on its merits. On appeal, this Court ruled that the district court should not have reached the merits because DiGuglielmo had not exhausted his state-court remedies. See DiGuglielmo I, 42 Fed.Appx. 492, 494-496, 2002 WL 1162791, at **2-4. We held, relying on Jordan v. Lefevre, 206 F.3d 196, 198-99 (2d Cir.2000), and Grey v. Hoke, 933 F.2d 117, 119-20 (2d Cir.1991), that there was no exhaustion because DiGuglielmo had failed to present his habeas claims adequately to the New York Court of Appeals: “[Ajttaching an appellate brief without explicitly alerting the [New York Court of Appeals] to each claim raised does not fairly present such claims for purposes of the exhaustion requirement underlying federal habeas jurisdiction.” DiGuglielmo I, 42 Fed.Appx. 492, 494, 495, 2002 WL 1162791, at *3 (quoting Jordan v. Lefevre, 206 F.3d at 199). Thereafter, DiGuglielmo returned to state court and sought indirect review of his present claims by asserting, in a petition for coram nobis, that his attorney’s failure to refer to them expressly in the request for permission to appeal to the New York Court of Appeals amounted to constitutionally ineffective assistance of counsel. That petition was denied on the ground that DiGuglielmo “failed to establish that he was denied the effective assistance of appellate counsel.” People v." }, { "docid": "23086821", "title": "", "text": "day. At Brown’s trial for murder and criminal possession of a weapon, the prosecution established that Barr was unarmed during the incident in question, that Brown did not believe that Barr possessed a weapon, and that at least three of the four bullets that struck Barr were fired while the victim was already lying prone on the ground. The jury saw Brown’s videotaped confession. The defense case relied on the defense of justification, and consisted solely of the testimony of Brown’s mother. She stated that while she generally got along with Barr’s family, she suspected Barr of having broken into and stolen items from her apartment shortly prior to his death. Brown did not testify. The jury convicted Brown of murder in the second degree and criminal possession of a weapon in the second and third degrees. N.Y. Penal Law §§ 125.25(1), 265.03 & 265.02(4) (McKinney 1987, 1989). Brown’s direct appeal challenged his conviction and sentence on several grounds, including a claim that the prosecution had not disproved his justification defense beyond a reasonable doubt, as required by New York law. The Appellate Division affirmed the conviction and ruled that “defendant’s justification defense was disproved beyond a reasonable doubt by evidence showing that defendant could have retreated with complete safety, and the number of shots fired into the victim. Nor did defendant testify that he feared for his life.” People v. Brown, 187 A.D.2d 312, 312, 589 N.Y.S.2d 448, 449 (1st Dep’t 1992) (emphasis added) (citations omitted). Leave to appeal to the Court of Appeals was denied. People v. Brown, 81 N.Y.2d 837, 595 N.Y.S.2d 736, 611 N.E.2d 775 (1993). In March 1993, Brown moved to vacate the conviction in the state trial court pursuant to N.Y. Crim. Proc. Law § 440.10(1)(h) (McKinney 1994). Seizing upon the Appellate Division’s observation that he had not testified that he feared for his life, Brown claimed for the first time that ineffective assistance of trial counsel had prevented him from testifying. He alleged that his attorney had “taken it upon himself to waive [Brown’s] fundamental right to testify,” despite Brown’s repeated “insistence” that" }, { "docid": "17860971", "title": "", "text": "victim in self-defense, as well as eyewitness testimony •concerning the shooting. Consequently, defense counsel’s trial strategy was to concede that the.defendant shot the victim, but to assert the defense of justification. This court will not, with the benefit of hindsight, second-guess an attorney’s losing trial strategy, even where, as here, it included an admission to the actual shooting and the unlawful possession of the gun used to shoot the victim, (citations omitted) Leave to appeal to the New York Court of Appeals was denied. People v. Jeremiah, 77 N.Y.2d 907, 569 N.Y.S.2d 939, 5.72 N.E.2d 622 (1991). Petitioner, acting pro se, then moved in Supreme Court, Kings County, to vacate his conviction pursuant to N.Y.Criminal Procedure Law § 440.10 on the ground that the prosecution failed to turn over potentially exculpatory evidence to him prior to trial. Specifically, petitioner claimed that he was prejudiced by the destruction of the original notes made by the police officer who testified at trial to the petitioner’s admissions, in violation of People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied, 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 (1961), and by the prosecution’s failure to produce the grand jury testimony of an eyewitness and the medical records of the deceased’s hospitalization. The trial court denied the motion. The court found that the issue of destruction of notes could not be raised in a Section 440.10 motion because sufficient facts appeared on the record to have permitted adequate review on direct appeal. The court also denied relief on this claim because petitioner had failed to request sanctions and develop the claim at trial. The court further found that there was no evidence that the police officer destroyed the notes in bad faith or that petitioner was prejudiced by their destruction. The claims concerning the hospital records and grand jury testimony were denied because they had not been raised at trial. The court also noted that the trial record indicated that counsel in fact had received the hospital records and had used them in cross-examining the medical examiner. Finally, the" }, { "docid": "1042583", "title": "", "text": "Law § 265.03 (McKinney 1997), or in the alternative, Criminal Possession of a Weapon in the Fourth Degree, N.Y. Penal Law § 265.01 (McKinney 1997). The jury acquitted Jackson of second degree murder but convicted him of second degree manslaughter and second degree criminal possession of a weapon. In September 1997, the court sentenced Jackson to concurrent indeterminate terms of five to fifteen years for manslaughter, and seven and one-half to fifteen years for weapons possession. III. The State Appeal Jackson appealed to the Appellate Division where he contended that (1) the trial court improperly denied his request for a jury instruction on justification; and (2) he was denied effective assistance of counsel. The Appellate Division unanimously affirmed his conviction, tersely concluding: Contrary to the defendant’s contention, no reasonable view of the evidence supports a justification charge and, thus, the trial court properly declined to give it (see, Penal Law § 35.15[2]). Under the circumstances of this case, the defendant was not denied the effective assistance of counsel (see, People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400). People v. Jackson, 266 A.D.2d 475, 476, 698 N.Y.S.2d 887, 887 (2d Dep’t 1999). Jackson’s application for leave to appeal to the New York Court of Appeals was denied. People v. Jackson, 94 N.Y.2d 921, 708 N.Y.S.2d 360, 729 N.E.2d 1159 (2000). IV. The Habeas Corpus Petition On January 26, 2001, Jackson petitioned the District Court for a writ of habeas corpus, raising the two claims he had raised to the Appellate Division on direct appeal — that the trial court improperly denied his request for a justification instruction and that he was denied the effective assistance of counsel. The District Court granted Jackson’s petition on both grounds: “the denial of due process resulting from the trial court’s failure to instruct the jury on justification and the ineffectiveness of trial counsel in relying on inapposite case law to support his request for a justification charge.” Jackson v. Edwards, 296 F.Supp.2d 292, 308 (E.D.N.Y.2008). The District Court reasoned that Jackson was entitled to have the jury instructed on a justification" }, { "docid": "1064916", "title": "", "text": "head with the baseball bat and that he had no time to disarm Campbell or choose a different course of action.” DiGuglielmo I, 42 Fed.Appx. 492, 2002 WL 1162791, at *1. The evidence at DiGuglielmo’s trial, however, showed that “[a]t the time of the shooting [DiGuglielmo’s father and brother-in-law] were not within striking distance of Campbell’s baseball bat.” DiGuglielmo II, slip op. at 6. Two disinterested witnesses testified that when DiGuglielmo shot Campbell, the distance between Campbell and DiGu-glielmo’s father was at least 10-14 feet; and according to several such witnesses, Campbell was backing away. (See People v. DiGuglielmo, Ind. No. 96-1403 (Westchester County), Trial Transcript at 191, 193-95 (Sept. 19, 1997); id. at 639, 666, 765, 686 N.Y.S.2d 443 (Sept. 25, 1997); id. at 1071-72, 1074-75, 686 N.Y.S.2d 443 (Oct. 1, 1997).) On direct appeal from his conviction, DiGuglielmo argued, inter alia, that the trial court’s instructions to the jury erred in describing the applicability of justification with respect to defense of a third person. The Appellate Division rejected this contention, holding that “the court’s justification charge with respect to defense of a third person, when viewed as a whole, adequately conveyed the proper standards to be applied.” People v. DiGuglielmo, 258 A.D.2d 591, 592, 686 N.Y.S.2d 443, 444 (2d Dep’t), lv. denied, 93 N.Y.2d 923, 693 N.Y.S.2d 507, 715 N.E.2d 510 (1999). The Appellate Division also concluded that the evidence was “ample” to permit the jury to find beyond a reasonable doubt that when DiGuglielmo shot Campbell, DiGuglielmo did not reasonably believe Campbell was threatening DiGuglielmo’s father. Id. The New York Court of Appeals denied permission to appeal further. See People v. DiGuglielmo, 93 N.Y.2d 923, 693 N.Y.S.2d 507, 715 N.E.2d 510 (1999). DiGuglielmo’s first federal habeas petition pursued, inter alia, his present challenges to the trial court’s instructions on justification and the prosecutor’s summation. The district court denied the petition on its merits. On appeal, this Court ruled that the district court should not have reached the merits because DiGuglielmo had not exhausted his state-court remedies. See DiGuglielmo I, 42 Fed.Appx. 492, 494-496, 2002 WL 1162791, at" }, { "docid": "1042584", "title": "", "text": "444 N.Y.S.2d 893, 429 N.E.2d 400). People v. Jackson, 266 A.D.2d 475, 476, 698 N.Y.S.2d 887, 887 (2d Dep’t 1999). Jackson’s application for leave to appeal to the New York Court of Appeals was denied. People v. Jackson, 94 N.Y.2d 921, 708 N.Y.S.2d 360, 729 N.E.2d 1159 (2000). IV. The Habeas Corpus Petition On January 26, 2001, Jackson petitioned the District Court for a writ of habeas corpus, raising the two claims he had raised to the Appellate Division on direct appeal — that the trial court improperly denied his request for a justification instruction and that he was denied the effective assistance of counsel. The District Court granted Jackson’s petition on both grounds: “the denial of due process resulting from the trial court’s failure to instruct the jury on justification and the ineffectiveness of trial counsel in relying on inapposite case law to support his request for a justification charge.” Jackson v. Edwards, 296 F.Supp.2d 292, 308 (E.D.N.Y.2008). The District Court reasoned that Jackson was entitled to have the jury instructed on a justification defense with regard to the homicide charge because “[f]rom the testimony and evidence presented at petitioner’s trial, a jury could have concluded that petitioner reasonably believed that Brown was attempting to take the keys by force from him— that is, attempting to commit a robbery,” or that Brown was trying “to enter apartment 2E with the intent to take the keys from petitioner-attempting to commit a burglary.” Id. at 301 (citing N.Y. Penal Law §§ 35.15(2)(b); 35.15(2)(c); 35.20(3)). Furthermore, the District Court concluded that the trial court’s error in failing to charge justification when it was warranted under New York law “so infected the proceedings as to deprive petitioner of his federal due process right to a fair trial.” Id. at 302 (citing Davis v. Strack, 270 F.3d 111 (2d Cir.2001)). In addition to vacating Jackson’s homicide conviction, the District Court also set aside his conviction for second degree weapons possession, finding that “a properly instructed jury might conclude that petitioner was justified in using deadly force to thwart a burglary, that the shooting was" }, { "docid": "10827734", "title": "", "text": "would submit both the depraved indifference murder count and the intentional murder count to the jury. Defense counsel also asked that the jurors be instructed on the defense of jus tification, which the trial court refused. For its part, the state requested that the jury be charged with the lesser included crime of first-degree manslaughter. Defense counsel objected to any lesser included charges being submitted to the jury and the trial court denied the state’s requested charge. When the trial judge charged the jury, he issued a charge on intentional second-degree murder instructing that “the law states that a person intends the natural consequences of his acts.” Although the court solicited objections from the parties after delivery of the charge, defense counsel did not object. The charge was later repeated twice during the jury deliberations, once in response to a note from the jury requesting “the legal definition of intent to kill.” Again, though provided an opportunity to object, defense counsel did not do so. After deliberating into a second day, the jury declared itself deadlocked and was directed by the court to continue deliberations. The jury finally reached a verdict of guilty of intentional murder and not guilty of depraved indifference murder. Cox appealed his conviction to the state appellate court, arguing, among other things, that the judge had erred in not instructing the jury on justification and that he had received ineffective assistance of counsel when counsel failed to object to the trial judge’s intent charge. The court affirmed Cox’s conviction without discussing the ineffective assistance claim. See People v. Cox, 245 A.D.2d 462, 666 N.Y.S.2d 463, 464 (2d Dept.1997). Cox then appealed to the New York Court of Appeals, reiterating his arguments on justification and ineffective assistance. The Court of Appeals, in affirming the conviction, addressed the justification argument at length and dismissed the ineffectiveness argument as “without merit.” People v. Cox, 92 N.Y.2d 1002, 1005, 684 N.Y.S.2d 473, 475, 707 N.E.2d 428 (1998). In December 1999, Cox filed a petition for a writ of habeas corpus in federal court. His petition raised the single claim that" }, { "docid": "1042611", "title": "", "text": "N.Y. Penal Law § 265.03 (McKinney 1997). Under New York law, justification under Section 35.15 is not a defense to second degree criminal possession of a weapon. See People v. Pons, 68 N.Y.2d 264, 265, 508 N.Y.S.2d 403, 501 N.E.2d 11 (1986). Whereas the defense of justification excuses the use of physical force in the context of a homicide, it is the act of possessing a weapon with intent to use it unlawfully, not the actual use of the weapon, that is at the heart of a weapons possession offense. See Pons, 68 N.Y.2d at 267, 508 N.Y.S.2d 403, 501 N.E.2d 11. Thus, “it does not follow that because defendant was justified in the actual shooting of the weapon under the particular circumstances existing at that moment, he lacked the intent to use the weapon unlawfully during the continuum of time that he possessed it prior to the shooting.” Pons, 68 N.Y.2d at 267-68, 508 N.Y.S.2d 403, 501 N.E.2d 11; see also Davis, 270 F.3d at 134 (explaining that under the rule in Pons, “[a] defendant may use his illegally possessed gun only in a manner that falls within the protection of the justification statute and nonetheless be guilty of criminal possession, second degree ... because, regardless that his actual, ultimate use of the gun might not have been unlawful (because it was justified under § 35.15), he may have harbored intentions to use the gun in other circumstances that would have been unlawful.”). That New York law does not recognize the defense of justification with respect to a weapons possession charge does not, however, mean that the trial court’s erroneous refusal to give a justification instruction with respect to the homicide charge did not fatally taint Jackson’s weapons possession conviction. The District Court observed, we think correctly, that “a properly instructed jury, if it found [Jackson] not guilty of the homicide charge, might further conclude that ... [he] was undeserving of punishment altogether.” Jackson, 296 F.Supp.2d at 305. More specifically, a jury that believed it had little choice under the law but to find Jackson guilty of second degree" }, { "docid": "1042607", "title": "", "text": "was of “immense importance” because Davis was “not a case of a minor error of state law in explaining the legal standards to the jury.” Id. Nor was it “a case of a refusal to instruct on a fantastic, improbable defense that the jury was unlikely to adopt.” Id. Instead, the failure to instruct the jury on justification deprived Davis, who had confessed to the shooting, of a “highly credible defense” to homicide. See id. at 131. We agree with the District Court that with respect to whether the failure to charge the jury on justification constituted a violation of due process, Jackson’s case is not “different [from Davis ] in any significant respect.” Jackson, 296 F.Supp.2d at 302. As in Davis, the evidence could have - allowed a jury to conclude that Jackson acted justifiedly and thus to acquit him of all homicide charges. However, in the face of Jackson’s confession, the jury could not acquit without having been instructed on justification. That the jury convicted Jackson of second degree manslaughter rather than second degree murder on the basis of his counsel’s alternative argument that the shooting was accidental suggests that the jury was, in fact, open to crediting Jackson’s version of events. “Taking all this into account, there is a substantial likelihood that a properly instructed jury would have found in [Jackson’s] favor on the homicide charge.” Davis, 270 F.3d at 131. As we said in Davis, to deny a defendant the opportunity to raise a “highly credible defense” to a charge of homicide is nothing short of a “catastrophic” error. Id. at 131-32. The State argues that a different result is compelled by Blazic v. Henderson, 900 F.2d 534 (2d Cir.1990), where we held that although the state court erred under New York law in failing to give a justification instruction, the error did not violate due process because it “would not have affected the jury’s verdict,” id. at 542. Our case differs from Blazic in two critical respects. First, in explaining in Blazic why the failure to give a justification instruction was harmless error, we said:" }, { "docid": "23086842", "title": "", "text": "(1986). Although Brown’s purported testimony would have supported the first element, and perhaps the second as well, nothing in his offer of proof would have been sufficient to support a reasonable inference in his favor on the third element of the justification defense. “If a defendant confronted with deadly force knows retreat can be made with complete safety and fails to do so, the defense [of justification] is lost.” In re Y.K., 87 N.Y.2d 430, 434, 639 N.Y.S.2d 1001, 663 N.E.2d 313, 315 (1996). The evidence before the jury established beyond a reasonable doubt that Brown did not have the right to use deadly force, regardless of any prior provocation. Brown was the only person with a gun. The victim was unarmed. Moreover, nothing in the record suggests that Brown somehow believed, mistakenly, that Barr possessed a weapon at any time during their struggle. Brown’s confession established that he fired five shots at an unarmed person. Forensic evidence demonstrated that at least three of these shots were fired while Barr was already in a prone position. Even if Brown did not know that he could have retreated with complete safety before the first shot, nothing could justify Brown’s continued shooting of the victim after that initial shot. Of. People v. Arlequin, 625 N.Y.S.2d 613, 614, 214 A.D.2d 747, 748 (2d Dep’t 1995) (concluding that where “defendant shot the victim after obtaining sole control of the gun, when the defendant no longer had a reasonable belief that he was in mortal danger and could have retreated in safety,” prosecution had disproved defense of justification beyond reasonable doubt); People v. Alvarez, 607 N.Y.S.2d 137, 138, 201 A.D.2d 487, 487-88 (2d Dep’t 1994). The entirety of Brown’s proffered testimony would have concerned his past encounters with Barr and how such experiences caused him to fear for his life during their fight on the evening of the shooting. Brown’s testimony could not have supported a reasonable inference in his favor on the retreat element of the justification defense, and the evidence before the jury overwhelmingly established that Brown could have safely retreated without using" } ]

[ { "docid": "3494388", "title": "", "text": "aside the question as to whether specialty license plates represent “a government-crafted message”- — and I do not believe that they do — -the proper question is not whether when the government speaks must it always allow others to speak, but whether a forum exists in which speech is occurring, and if so, whether the government may suppress a disfavored message based on its viewpoint, Thus, I would start by determining the overall purpose of the speciality license plate program. When this is done, viewing the license plate program as a whole, and taking account of the fact that the government engages in speech by providing the actual license plates, it becomes clear that the speciality license plate “program was designed to facilitate private speech, not to promote a governmental message.” Legal Services Corp. v. Velazquez, 531 U.S. 533, 542, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 834, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). This conclusion, in contrast to the majority’s, would require Tennessee’s license plate program to be viewpoint neutral. Tennessee requires all motor vehicles to have a license plate. Motorists can choose from ordinary license plates created by the Tennessee government or they can pay extra for personalized and specialty license plates. There are several standard Tennessee plates and there are approximately 150 specialty plates. As the majority notes, the specialty plates are created in consultation with private organizations and half of the profits may be devoted to the private non-profit organizations sponsoring the plates. In my opinion, the fact that the state has permitted approximately 150 private organizations to create specialty license plates and the manner in which the state operates its license plate program demonstrates that the forum was created to facilitate private speech. See Rosenberger, 515 U.S. at 829-30, 115 S.Ct. 2510 (analyzing forum); Good News Club v. Milford Cent. Sch. Dist., 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) (applying forum analysis where private speech occurs on government property); Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508" } ]

[ { "docid": "17575618", "title": "", "text": "News Club v. Milford Cent. Sch., 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001); Rosenberger, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700; Lamb’s Chapel v. Ctr. Moriches Sch. Dist., 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993). A In Widmar, the University of Missouri-Kansas City had enacted a policy governing access to university facilities that was uncannily similar to the policy here: It barred the use of university buildings, which were generally open to use by student groups, “for purposes of religious worship or religious teaching.” Widmar, 454 U.S. at 265 n. 3, 102 S.Ct. 269. Pursuant to this policy, the university denied an evangelical student group permission to use university facilities, in part because some of its activities consisted of religious worship. Id. at 265, 102 S.Ct. 269. The Court held that this type of discrimination against groups seeking to engage in “religious worship and discussion” was improper because “[tjhese are forms of speech and association protected by the First Amendment.” Id. at 269, 102 S.Ct. 269. Given the close parallels between the policy and expressive activity involved in this case and those at issue in Widmar, the panel should have summarily affirmed the district court. The classrooms in Widmar were open broadly to the university community just as the library’s rooms here were open broadly to community and cultural groups. Like the student group in Widmar, the church here sought access for both worship and non-worship speech activities. As in Widmar, there was no constitutional basis for distinguishing between permitted and prohibited forms of speech. As the Court has explained in subsequent decisions, Widmar’s equal access rule imposes two requirements. First, once the government has opened a limited forum, it “must respect the lawful boundaries it has itself set” and “may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum.” Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510 (internal quotations omitted). Second, even if the exclusion reasonably relates to the purpose of the forum, any restriction must be viewpoint neutral. Lamb’s Chapel, 508" }, { "docid": "20895491", "title": "", "text": "Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106, 121 S.Ct. 2093, 2100, 150 L.Ed.2d 151 (2001). The State’s power to restrict speech in a limited forum is not, however, unlimited. Id. Any such restriction “must not discriminate against speech on the basis of viewpoint, and the restriction must be reasonable in light of the purpose served by the forum.” Id. at 106-07, 121 S.Ct. at 2100 (internal citations and quotation marks omitted). “A nonpublic forum, in contrast, is a government-owned property that is not by tradition or governmental designation a forum for public communication.” Miller, 622 F.3d at 534 (internal quotation marks omitted). For a nonpublic forum, the government may limit access “based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Helms v. Zubaty, 495 F.3d 252, 256 (6th Cir.2007) (internal quotation marks omitted). In determining whether a forum is some type of public forum or a non-public forum, the Sixth Circuit focuses on “whether the government intentionally opened the forum for public discourse.” Am. Freedom, 698 F.3d at 890. Such analysis includes “not only... the government’s explicit statements, policy, and practice, but also the nature of the property and its compatibility with expressive activity to discern the government’s intent.” Id. (internal citations and quotation marks omitted). The Church argues that the community rooms are either traditional or des ignated public fora because “no community groups are excluded except based on the religious content of their meetings.” (Dkt. # 11, Page ID# 288.) That assertion, however, i& belied by the record. The affidavits from the Housing Commission state that community groups may be granted access to the community rooms “so long as the purpose is to benefit the residents at the [Housing Commission] facility” (dkt. # 15-2' at Page ID# 489, ¶ 6), and there is no evidence that the rooms have been used beyond that purpose. Thus, the Housing Commission has not “open[ed] [the community rooms] to the public at large, treating [them] as if [they] were" }, { "docid": "3494405", "title": "", "text": "Id. at 536-37, 121 S.Ct. 1043. The plaintiffs challenged the restriction, arguing that it constituted impermissible viewpoint discrimination in violation of the First Amendment. The United States relied upon Rust v. Sullivan. The Court noted that in Rust, it “did not place explicit reliance on the rationale that the counseling activities of the doctors under Title X amounted to governmental speech” but “when interpreting the holding in later cases, however, [the Court] ha[s] explained Rust on this understanding.” Id. at 541, 121 S.Ct. 1043. The Court acknowledged that viewpoint based funding decisions can be sustained where “the government is itself the speaker” or, “like Rust ” where the government “used private speakers to transmit specific information pertaining to its own program.” Id. (citations and quotations omitted). The majority here latches onto the idea that Tennessee is using private speakers to disseminate its Choose Life message— that is, the license plate program is “like Rust.” As I have discussed above, however, Rust included a caveat that the majority fails to acknowledge. Because of that failure, the majority does not properly characterize the specialty license plate program, and it does not properly consider whether the specialty license plate forum has been traditionally open to the public for expressive activity. Rust, 500 U.S. at 199-200, 111 S.Ct. 1759. As the Supreme Court held, contrary to the majority’s belief here, “[njeither the latitude for government speech nor its rationale applies to subsidies for private speech in every instance, however. As we have pointed out, ‘[i]t does not follow ... that viewpoint-based restrictions are proper when the [government] does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers.’ ” Id. at 542, 121 S.Ct. 1043 (quoting Rosenberger, 515 U.S. at 834, 115 S.Ct. 2510). Distinguishing Legal Services Corp. from Rust, the Court stated that “the salient point is that, like the program in Rosenberger, the LSC program was designed to facilitate private speech, not to promote a governmental message.” Id. So too, the salient point here is that the license" }, { "docid": "19343912", "title": "", "text": "fora, the government may make reasonable, viewpoint-neutral rules governing the content of speech allowed.” Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 626 (2d Cir.2005) (emphasis and internal citations omitted). Once the state has created a limited public forum, however, it must respect the boundaries that it has set. It may not “exclude speech where its distinction is not reasonable in light of the purpose served by the forum, nor may it discriminate against speech on the basis of its viewpoint.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (internal citations and quotation marks omitted). The forum itself can take many forms, yet the analysis of the constitutionality of restrictions imposed on speech made in the forum remains the same. See id. at 830, 115 S.Ct. 2510 (“The [student activity fund] is a forum more in a metaphysical than in a spatial or geographic sense, but the same principles are applicable.”). For over three decades, courts have acknowledged that a public university’s establishment of a student media outlet typically involves the creation of a limited public forum, which means that the ability of school administrators to interfere with the speech made through such an outlet is generally strictly curtailed. The Fourth Circuit, for instance, recognized the strong First Amendment rights of student journalists at public colleges in Joyner v. Whiting, 477 F.2d 456 (4th Cir.1973). There, the president of North Carolina Central University withdrew the University’s support for the Echo, a student newspaper, because of his objections to the newspaper’s content. The court held that the college president’s actions violated the First Amendment rights of the students who produced the college newspaper. Id. at 462. It explained that “[i]t may well be that a college need not establish a campus newspaper, or, if a paper has been established, the college may permanently discontinue publication for reasons wholly unrelated to the First Amendment. But if a college has a student newspaper, its publication cannot be suppressed because college officials dislike its editorial comment.” Id. at 460. The" }, { "docid": "3494408", "title": "", "text": "as an isolated instance of a government message disseminated by private volunteers without considering the program as a whole. If we think of each individual license plate in a vacuum, each one can be reasonably characterized as a government message. But, in order to properly characterize the specialty license plate program for First Amendment purposes, we cannot view each license plate in isolation. I suggest that when opening one’s eyes to the license plate program as a whole, it is evident that the government has created a program to encourage a diversity of views and messages from private speakers. II. With the preceding First Amendment doctrine issues in mind, I would hold that Tennessee created a forum to encourage a diversity of viewpoints from private speakers and therefore the Constitution requires viewpoint neutrality. In Rust, “the government did not create a program to encourage private speech but instead used private speakers to transmit specific information pertaining to its own program.” Rosenberger, 515 U.S. at 833, 115 S.Ct. 2510 (describing Rust). This is not a Rust case despite the majority framing it as such. See also Sons of Confederate Veterans, 305 F.3d at 246 (Luttig, J., respecting the denial of rehearing en banc) (“When a special license plate is purchased, it is really the private citizen who engages the government to publish his message, not the government who engages the private individual to publish its message, as in cases like Rust v. Sullivan [ ] and Wooley v. Maynard, for example.”). The specialty license plate program itself has been open and available to a wide-range of private speakers to promote their own messages. The government’s participation in the process by providing the actual license plate “in the form of Government-owned property, does not justify the restriction of speech in areas that have been traditionally open to the public for expressive activity.” Rust, 500 U.S. at 199-200, 111 S.Ct. 1759 (internal quotation marks and citation omitted). Moreover, the government speech rationale does not apply whenever the government somehow has its hands or its money involved. “It does not follow ... that viewpoint-based" }, { "docid": "11823326", "title": "", "text": "could espouse some different or contrary position.” Id. Accordingly, when the government is the speaker, it may choose what to say and what not to say; it need not be neutral. Subject to other constitutional limitations not at issue here (such as the Establishment Clause), the constraints on the government’s choice of message are primarily electoral, not judicial. While it is true that the government may not compel a person to “express a message he disagrees with, imposed by the government” (the “compelled speech” doctrine) or compel a person to “subsidize a message he disagrees with, expressed by a private entity” (the “compelled subsidy” doctrine), see Johanns, 544 U.S. at 557, 125 S.Ct. 2055, neither of these principles is implicated here. (We will have more to say about Johanns in a moment.) It follows, then, that if the messages on specialty license plates in Illinois are the State’s own speech, no private-speech rights are involved and CLI’s remedy for the defeat of its “Choose Life” license plate is at the ballot box. If, on the other hand, the messages on specialty license plates are not government speech, then the denial of CLI’s application for a “Choose Life” specialty plate is analyzed under the Supreme Court’s “speech forum” doctrine. “The government violates the Free Speech Clause of the First Amendment when it excludes a speaker from a speech forum the speaker is entitled to enter.” Christian Legal Soc’y v. Walker, 453 F.3d 853, 865 (7th Cir.2006) (citing Rosenberger, 515 U.S. at 829-30, 115 S.Ct. 2510; Hosty, 412 F.3d at 737). Judicial scrutiny in this context varies depending on the nature of the forum, and speech fora come in three basic varieties: traditional public, designated public, and nonpublic. We will return to forum analysis later; the predicate question is whether the messages on specialty license plates are government speech, private speech, or a combination of the two. Other circuits are divided on the question. The Fourth and Ninth Circuits have held that messages on specialty license plates are private or hybrid speech; the Sixth Circuit has held that messages on specialty license" }, { "docid": "16941512", "title": "", "text": "The Applicable Standard of Free Speech Clause Review Municipalities may restrict access to a nonpublic forum “so long as the [re- strictions imposed] are reasonable ... and are viewpoint neutral.” Cornelius v. NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); see also Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) (“The State’s power to restrict speech [within a nonpublic forum] ... is not without limits. The restriction must not discriminate against speech on the basis of viewpoint and the restriction must be reasonable ....”) (internal quotation marks and citation omitted). The City of Ogden concurs. See Aples’ Br. at 32 (“The City’s decision to restrict access to a nonpublic forum need only be reasonable .... and ... viewpoint neutral.”). Reasonableness is measured against the purposes of the given forum. See Summum v. Callaghan, 130 F.3d 906, 916 (10th Cir.1997) (“The government may limit speech in a nonpublic forum to reserve the forum for the specific official uses to which [that forum] is lawfully dedicated.”). While “[c]ontrol over access to a nonpublic forum can be based on subject matter and speaker identity,” this is true only “so long as the distinctions drawn are reasonable in light of the purpose served by the forum.” Cornelius, 473 U.S. at 806, 105 S.Ct. 3439; accord Good News, 533 U.S. at 106-07, 121 S.Ct. 2093. Reasonableness in light of the forum’s purpose depends upon consideration of “all the surrounding circumstances.” Cornelius, 473 U.S. at 809, 105 S.Ct. 3439. Speech restrictions in a nonpublic forum must be not only reasonable but also “viewpoint neutral.” Id. at 806, 105 S.Ct. 3439; see also Good News, 533 U.S. at 106-07, 121 S.Ct. 2093 (“The restriction must not discriminate against speech on the basis of viewpoint.”). Although a speaker may be excluded from a nonpublic forum if [the speaker] wishes to address a topic not encompassed within the purpose of a forum, or if [the speaker] is not a member of the class of speakers for whose especial benefit" }, { "docid": "11823343", "title": "", "text": "Educ. Ass’n, 460 U.S. at 46, 103 S.Ct. 948; see also Good News Club, 533 U.S. at 106, 121 S.Ct. 2093. Restrictions on speech within a nonpublic forum must not discriminate on the basis of viewpoint and “must be reasonable in light of the forum’s purpose.” Good News Club, 533 U.S. at 106-07, 121 S.Ct. 2093 (citing Cornelius, 473 U.S. at 806, 105 S.Ct. 3439); Forbes, 523 U.S. at 682, 118 S.Ct. 1633; Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510; Lamb’s Chapel, 508 U.S. at 392-93, 113 S.Ct. 2141. Specialty license plates are an unusual species of forum — certainly not a traditional public forum, and we think not a designated public forum, either. Illinois hasn’t opened this particular property for general public discourse and debate. “[T]he government need not permit all forms of speech on property that it owns and controls,” Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992), and it “does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse,” Corneli us, 473 U.S. at 802, 105 S.Ct. 3439. Relevant factors in the analysis include “the policy and practice of the government” and “the nature of the property and its compatibility with expressive activity.” Id. These factors weigh against a conclusion that specialty license plates are a designated public forum. License plates in Illinois, as elsewhere, are heavily regulated by policy and practice. See 625 III. Comp. Stat. 5/3-100 et seq., 5/3-400 et seq., 5/3-600 et seq. Their primary purpose is to identify the vehicle, not to facilitate the free exchange of ideas. License plates are not by nature compatible with anything more than an extremely limited amount of expressive activity. We conclude that specialty license plates are a forum of the nonpublic variety, which means that we review CLI’s exclusion from that forum for viewpoint neutrality and reasonableness. D. Viewpoint Neutrality and Reasonableness Within a nonpublic forum, the Supreme Court has recognized “a distinction between, on the one hand, content discrimination," }, { "docid": "3946747", "title": "", "text": "384, 390, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993); Christ’s Bride, 148 F.3d at 247. Where, however, the property at issue is a traditional public forum or a forum designed as public by the government,‘the First Amendment hinders the government’s ability to restrict speech. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); Christ’s Bride, 148 F.3d at 247. A limited public forum — a subcategory of the designated public forum — “is created when the government opens a nonpublic forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain kinds of subjects.” Kreimer v. Bureau of Police, 958 F.2d 1242, 1246-1247 (3d Cir.1992) (citation omitted). Donovan and Appellees agree that the PAHS activity period is a limited public forum, and we will treat the period as such. Although the government may indeed restrict the limited public forum to certain subjects and certain speakers, the government “may not discriminate against speech on the basis of viewpoint, and the restriction must be reasonable in light of the purpose served by the forum.” Good News Club v. Milford Cent Sch., 533 U.S. 98, 106-107, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001). With regard to viewpoint restrictions, “speech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the, subject is discussed from a religious viewpoint.” Id. at 112, 121 S.Ct. 2093; see also Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (holding that a university engaged in improper viewpoint discrimination when it denied student activities funds to a student magazine addressing public policy issues from a Christian perspective); Lamb’s Chapel v. Moriches Union Free Sch. Dist., 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (holding that a school’s refusal to permit an organization access to school facilities at night to show a film about family issues from a religious perspective constituted impermissible viewpoint discrimination). FISH is a group that discusses current issues from a biblical" }, { "docid": "17287170", "title": "", "text": "that wished to publish a newspaper that advocated Christian viewpoints. The Supreme Court analogized the Student Activities Fund to creating a “metaphysical” limited public forum for student speech. Id. at 829-30, 115 S.Ct. 2510. The Court explained that once the State “has opened a limited forum, ... the State must respect the lawful boundaries it has itself set. The State may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum, nor may it discriminate against speech on the basis of its viewpoint.” Id. at 829, 115 S.Ct. 2510 (internal citations and quotation marks omitted). The Supreme Court rejected the University’s attempt to rely on Rust for the proposition that it could make content-based funding decisions when necessary to accomplish its educational mission. Id. at 832-33, 115 S.Ct. 2510. In so doing, the Court acknowledged that it was true that “we have permitted the government to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message.” Id. at 833, 115 S.Ct. 2510. The Court pointed to Rust as a case where the government did not create a program to encourage private speech but instead used private speakers to trans- mit specific information pertaining to its own program. We recognized that when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes. When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee. Id. (internal citations omitted). The Court explained, however, that it had never held that “viewpoint-based restrictions are proper when the University does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers.” Id. at 834, 115 S.Ct. 2510. In sum, because the University offered funds to student groups specifically to “encourage a diversity of views from" }, { "docid": "20755356", "title": "", "text": "time, place, and manner restrictions are permissible only if they are narrowly tailored and leave open other avenues for expression.” AFDI, 880 F.Supp.2d at 469 (citing Pleasant Grove City, 555 U.S. at 469-70, 129 S.Ct. 1125); see also Int’l Action Ctr. v. City of N.Y, 587 F.3d 521, 526-27 (2d Cir.2009) (citing Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661, (1989)); Hotel Emps., 311 F.3d at 545. The third category, the limited public forum, is often analyzed as a subset of the designated public forum and as a nonpublic forum opened up for specific purposes. See Byrne v. Rutledge, 623 F.3d 46, 55 n. 8 (2d Cir.2010) (“[T]he law of [the Second Circuit] describes a limited public forum as both a subset of the designated public forum and a nonpublic forum opened to certain kinds of speakers or to the discussion of certain subjects.” (internal quotation marks and citations omitted)). The government has opened up limited public fora for some speech, but these fora are “ ‘limited to use by certain groups or dedicated solely to the discussion of certain subjects.’ ” Christian Legal Soc’y, 130 S.Ct. at 2984 n. 11 (quoting Pleasant Grove City, 555 U.S. at 470, 129 S.Ct. 1125). Common examples of limited public fora include “state university meeting facilities opened for student groups, open school board meetings, city-leased theaters, and subway platforms opened to charitable solicitations.” AFDI, 880 F.Supp.2d at 470 n. 6 (quoting Hotel Emps., 311 F.3d at 545). “The government has more leeway to restrict speech in a limited public forum than in a traditional or designated public forum,” id.; however, speech restrictions in a limited public forum must be viewpoint-neutral and reasonable in light of the forum’s purpose. See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); Cornelius, 473 U.S. at 806, 105 S.Ct. 3439. The final category, the nonpublic forum, consists of property that “the" }, { "docid": "14079321", "title": "", "text": "address a topic not encompassed within the purpose of a forum, or if he is not a member of the class of speakers for whose especial ben efit the forum was created, [but government] violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject. Cornelius, 473 U.S. at 806, 105 S.Ct. 3439 (internal citations omitted); see also Rosenberger, 515 U.S. at 829-30, 115 S.Ct. 2510. In light of this standard, we must respectfully disagree with the district court’s determination. We believe that the NDP assembly is a “civic program or activity,” as the Village has defined the term, and that the Village’s denial of the plaintiffs’ application to use the Village Hall constitutes viewpoint discrimination. In adopting the philosophical and theological position that prayer, the singing of hymns and the use of Bible commentary can never be “civic,” the Village has discriminated against the speech of those of its citizens who utilize these forms of expression to convey their point of view on matters relating to government. The Supreme Court’s recent decision in Good News Club v. Milford Central School, 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001), which was rendered after the district court’s ruling in this case, strongly supports our holding. In Good News, a New York school enacted a community use policy opening its building for, among other things, “instruction in any branch of education, learning or the arts” and “social, civic and recreational meetings and entertainment events, and other uses pertaining to the welfare of the community.” Good News, 121 S.Ct. at 2098 (internal quotation marks and citations omitted). A local Good News Club, a private Christian organization for children ages six to twelve, sought to hold the Club’s weekly meetings in the school’s cafeteria. See id. These meetings used the recitation of Bible verses, biblical stories and songs that included references to Jesus Christ to discuss issues such as moral and character development. See id.) Good News Club v. Milford Cent. Sch., 202 F.3d 502, 504-06 (2d Cir.2000)" }, { "docid": "20895490", "title": "", "text": "as a street or park.” Kincaid v. Gibson, 236 F.3d 342, 348 (6th Cir.2001) (internal quotation marks omitted). “The government creates a designated public forum when it opens a piece of public property to the public at large, treating as if it were a traditional public forum.” Miller, 622 F.3d at 534. Government restrictions based on the content of speech in traditional and designated public fora are subject to strict scrutiny analysis. Pleasant Grove, 555 U.S. at 469-70, 129 S.Ct. at 1132. A limited public forum is distinct from a traditional or designated public forum. Miller, 622 F.3d at 535 n. 1. As the Sixth Circuit has explained, “a government entity may ‘create a forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects.’ ” Miller, 622 F.3d at 534-35 (quoting Pleasant Grove, 555 U.S. at 470, 129 S.Ct. at 1132). “When the State establishes a limited public forum, the State is not required to and does not allow persons to engage in every type of speech.” Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106, 121 S.Ct. 2093, 2100, 150 L.Ed.2d 151 (2001). The State’s power to restrict speech in a limited forum is not, however, unlimited. Id. Any such restriction “must not discriminate against speech on the basis of viewpoint, and the restriction must be reasonable in light of the purpose served by the forum.” Id. at 106-07, 121 S.Ct. at 2100 (internal citations and quotation marks omitted). “A nonpublic forum, in contrast, is a government-owned property that is not by tradition or governmental designation a forum for public communication.” Miller, 622 F.3d at 534 (internal quotation marks omitted). For a nonpublic forum, the government may limit access “based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Helms v. Zubaty, 495 F.3d 252, 256 (6th Cir.2007) (internal quotation marks omitted). In determining whether a forum is some type of public forum or a non-public forum, the Sixth Circuit focuses" }, { "docid": "19343911", "title": "", "text": "May 1997 that her actions violat ed the First Amendment rights of the plaintiffs. Plaintiffs appealed. In their action before this court, they contend that the district court erred when it held that President Springer was entitled to qualified immunity and when it dismissed the Student Government Defendants on the ground they were not state actors. Discussion I. President Springer Violated Plaintiffs’ First Amendment Rights A. Scope of First Amendment Rights for Student Media Outlets, and the Student Journalists who Produce Them, at Public Universities Courts have long recognized that student media outlets at public universities, and the student journalists who produce those outlets, are entitled to strong First Amendment protection. These rights stem from courts’ recognition that such student media outlets generally operate as “limited public fora,” within which schools may not disfavor speech on the basis of viewpoint. A limited public forum is “is created when the State ‘opens a non-public forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain subjects.’ ... In limited public fora, the government may make reasonable, viewpoint-neutral rules governing the content of speech allowed.” Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 626 (2d Cir.2005) (emphasis and internal citations omitted). Once the state has created a limited public forum, however, it must respect the boundaries that it has set. It may not “exclude speech where its distinction is not reasonable in light of the purpose served by the forum, nor may it discriminate against speech on the basis of its viewpoint.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (internal citations and quotation marks omitted). The forum itself can take many forms, yet the analysis of the constitutionality of restrictions imposed on speech made in the forum remains the same. See id. at 830, 115 S.Ct. 2510 (“The [student activity fund] is a forum more in a metaphysical than in a spatial or geographic sense, but the same principles are applicable.”). For over three decades, courts have acknowledged that a public" }, { "docid": "3494409", "title": "", "text": "case despite the majority framing it as such. See also Sons of Confederate Veterans, 305 F.3d at 246 (Luttig, J., respecting the denial of rehearing en banc) (“When a special license plate is purchased, it is really the private citizen who engages the government to publish his message, not the government who engages the private individual to publish its message, as in cases like Rust v. Sullivan [ ] and Wooley v. Maynard, for example.”). The specialty license plate program itself has been open and available to a wide-range of private speakers to promote their own messages. The government’s participation in the process by providing the actual license plate “in the form of Government-owned property, does not justify the restriction of speech in areas that have been traditionally open to the public for expressive activity.” Rust, 500 U.S. at 199-200, 111 S.Ct. 1759 (internal quotation marks and citation omitted). Moreover, the government speech rationale does not apply whenever the government somehow has its hands or its money involved. “It does not follow ... that viewpoint-based restrictions are proper when the [government] does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers.” Id. at 542, 121 S.Ct. 1043 (quoting Rosenberger, 515 U.S. at 834, 115 S.Ct. 2510); see also Sons of Confederate Veterans, 305 F.3d at 246 (Luttig, J., respecting the denial of rehearing en banc) (“No one, upon careful consideration, would contend that, simply because the government owns and controls the forum, all speech that takes place in that forum is necessarily and exclusively government speech. Such would mean that even speech by private individuals in traditional public fora is government speech, which is obviously not the case.”). Finally, I also cannot subscribe to my colleagues’ melodramatic doomsday predictions about what would occur should we hold that the Constitution requires that Tennessee’s specialty license plate program be viewpoint neutral. The majority claims that viewpoint neutrality will require the state to issue Ku Klux Klan and American Nazi Party specialty license plates. The simple answer in" }, { "docid": "21408979", "title": "", "text": "Sch. Dist., 927 F.2d 688, 692 (2d Cir.1991); see also Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (“[T]he State must respect the lawful boundaries it has itself set. The state may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum, nor may it discriminate against speech on the basis of its viewpoint”) (internal quotation marks and citations omitted). Finally, in a nonpublic forum, which has not been opened by tradition or designation to the public for communication, speech may be excluded through any “reasonable” content-based restrictions so long as these do not “suppress expression merely because public officials oppose the speaker’s view.” Perry Educ. Ass’n, 460 U.S. at 46, 103 S.Ct. 948. In Bronx Household I, we held that defendants’ school facilities constituted a limited public forum and, consequently, that speech could be barred only through restrictions that were viewpoint neutral and reasonably related to the limited purposes of the forum. 127 F.3d at 211-214. Bronx Household II did not revisit this finding. We remain bound by our finding that the school in the case at bar is a limited public forum. There is nothing in the record that requires us to reconsider that holding. And Good News Club in no way calls our reasoning on this point into question. 533 U.S. at 107, 121 S.Ct. 2093; id. at 136 n. 1, 121 S.Ct. 2093 (Souter, J., dissenting). Since the forum involved in this case is a limited public forum, the question of whether defendants’ exclusion of worship services constitutes content or viewpoint discrimination becomes crucial. For, as the Supreme Court has stated in Rosen-berger. [I]n determining whether the State is acting to preserve the limits of the forum it has created so that the exclusion of a class of speech is legitimate, we have observed a distinction between, on the one hand, content discrimination, which may be permissible if it preserves the purposes of that limited forum, and, on the other hand, viewpoint discrimination, which is" }, { "docid": "17420807", "title": "", "text": "by engaging in viewpoint discrimination, that would not create a public forum where none was intended. The MBTA’s policy clearly evidenced an intent to maintain control over the forum, and thus the MBTA did not create a designated public forum. As a result, the standard of review is not strict scrutiny. B. Viewpoint Discrimination and Unreasonableness Claims in Both Change the Climate and Ridley Athough the MBTA advertising program is neither a traditional public forum nor a designated public forum, regulations are still unconstitutional under the First Amendment if the distinctions drawn are viewpoint based or if they are unreasonable in light of the purposes served by the forum. Cornelius, 473 U.S. at 806, 105 S.Ct. 3439. The bedrock principle of viewpoint neutrality demands that the state not suppress speech where the real rationale for the restriction is disagreement with the underlying ideology or perspective that the speech expresses. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); McGuire v. Reilly, 386 F.3d 45, 62 (1st Cir.2004) (“The essence of a viewpoint discrimination claim is that the government has preferred the message of one speaker over another.”). A distinction is viewpoint based if it “denies access to a speaker solely to suppress the point of view he espouses.” Cornelius, 473 U.S. at 806, 105 S.Ct. 3439. The essence of viewpoint discrimination is not that the government incidentally prevents certain viewpoints from being heard in the course of suppressing certain general topics of speech, rather, it is a governmental intent to intervene in a way that prefers one particular viewpoint in speech over other perspectives on the same topic. See, e.g., Good News Club v. Milford Cent. Sch., 533 U.S. 98, 107-09, 121 S.Ct. 2093, 150 L.Ed.2d 151 (school that has opened its resources after school for the teaching of moral values cannot exclude religious group that wishes to teach about those values from a religious perspective without engaging in viewpoint discrimination); Rosenberger, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700; Lamb’s Chapel v. Ctr. Moriches Union Free" }, { "docid": "17424542", "title": "", "text": "two factors: “1) the government’s intent with respect to the forum, and 2) the nature of the [forum] and its compatibility with the speech at issue.” Id. (internal quotations omitted). The Fifth Circuit’s reasoning in Chiu shows that a designated public forum is one where the government has opened up a nonpublie forum to the public generally, to facilitate discussion on issues of public concern. Id. at 346-47. A limited public forum is one where the government has only opened up a nonpublic forum to either a specific group of speakers or for discussion on a very narrow topic. Id. The UT System Rules do not open up any of its property to the general public. See Rule 6.1. It appears that UTA has only opened up its property for the use of members of the UTA community. See Rule 6.2 and 6.7. Under the analysis described in Chiu, this would make the property at issue in the instant case a limited public forum. See Chiu, 260 F.3d at 347. In a limited public forum, “the restriction must not discriminate against speech on the basis of viewpoint, ... and the restriction must be ‘reasonable in light of the purpose served by the forum.’ ” Good News Club v. Milford Cent. School, 533 U.S. 98, 106-07, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001). See also Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828-29, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (“It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.”). The Court will evaluate the UT System’s restriction of its property to members of the UT System community using these two factors — viewpoint discrimination and reasonableness— below. 2. Viewpoint Discrimination In his Motion for Preliminary Injunction, Bourgault argues that the restriction against evangelizing and witnessing is viewpoint discrimination. While the Court agrees that this appears to be viewpoint discrimination, as discussed above, Bour-gault does not have standing to bring this claim in this motion. In his Reply Brief, Bourgault also argues that the requirement that" }, { "docid": "1360648", "title": "", "text": "19-22. The Board argues that it enforces a facially neutral ban on racially divisive symbols in a nondiscriminatory manner. Defendant-Appellee Br. at 34. In Rosenberger, the Supreme Court illuminated the often imprecise distinction between content-based and viewpoint-discriminatory restrictions on speech. “The necessities of confining a forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics.” Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510. “Once it has opened a limited forum, however, the State must respect the lawful boundaries it has itself set.” Id. “The State may not exclude speech where its distinction is not ‘reasonable in light of the purpose served by the forum,’ ... nor may it discriminate against speech on the basis of its viewpoint.” Id. (quotation omitted). Thus, the Court “observe[s] a distinction between, on the one hand, content discrimination, which may be permissible if it preserves the purposes of that limited forum, and, on the other hand, viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum’s limitations.” Id. at 829-30, 115 S.Ct. 2510. The two sides in this litigation have presented competing paradigms for what we should view as constituting content-based and viewpoint-based regulations on speech, in the circumstances of this case. Plaintiffs-Appellants suggest that the school may restrict student speech regarding race as a general topic, but may not ban racially divisive speech while allowing racially inclusive speech. By contrast, the school suggests that the restriction on racially divisive clothing is a permissible content-based restriction and that our inquiry should be whether the clothing ban is enforced in a viewpoint-discriminatory manner. We agree with the school. As an initial matter, Plaintiffs-Appellants’ suggested definition of “content” in this case is so abstract as to approach absurdity. Considering the salience of race to our nation’s history and contemporary political and social debates, any public school would seriously hamper its ability to foster thoughtful and responsible citizens by prohibiting all student speech and expression about any topic dealing with race. Moreover, we find Plaintiffs-Appellants’" }, { "docid": "3494389", "title": "", "text": "require Tennessee’s license plate program to be viewpoint neutral. Tennessee requires all motor vehicles to have a license plate. Motorists can choose from ordinary license plates created by the Tennessee government or they can pay extra for personalized and specialty license plates. There are several standard Tennessee plates and there are approximately 150 specialty plates. As the majority notes, the specialty plates are created in consultation with private organizations and half of the profits may be devoted to the private non-profit organizations sponsoring the plates. In my opinion, the fact that the state has permitted approximately 150 private organizations to create specialty license plates and the manner in which the state operates its license plate program demonstrates that the forum was created to facilitate private speech. See Rosenberger, 515 U.S. at 829-30, 115 S.Ct. 2510 (analyzing forum); Good News Club v. Milford Cent. Sch. Dist., 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) (applying forum analysis where private speech occurs on government property); Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 390-91, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (same); Sons of Confederate Veterans, Inc. v. Commissioner of the Va. Dep’t. of Motor Vehicles, 288 F.3d 610, 622 (4th Cir.2002) (noting that where private speech is at issue, restrictions must be viewpoint neutral regardless of type of forum); Planned Parenthood of South Carolina, Inc. v. Rose, 361 F.3d 786 (4th Cir,2004) (same). The organizations with specialty license plates are numerous and diverse. The majority claims, however, in concluding that all of the license plates are pure government speech, that “there is nothing implausible about the notion that Tennessee would use its license plate program to convey messages regarding over one hundred groups, ideologies, activities, and colleges.” There may be nothing implausible about the majority’s concept in the abstract; here, however, the evidence is clear that Tennessee wished to create a forum for private speakers. It cannot be ignored that the license plates represent a wide-array of viewpoints, some arguably conflicting, and many not germane to any governmental interest. See Legal Services Corp., 531 U.S." } ]

[ { "docid": "20725254", "title": "", "text": "by the APA. . The source of confusion upon this point may be in part that § 701(a)(2) codifies “traditional principles of nonreviewability, ” Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 160 (D.C.Cir.2006), according to which a matter committed to agency discretion is not reviewable because courts lack judicially manageable standards by which to evaluate it. Drake v. FAA, 291 F.3d 59, 70 (D.C.Cir.2002). That a particular dispute is nonjusticiable, however, does not mean the court lacks jurisdiction over the subject matter. See Baker, 369 U.S. at 198, 82 S.Ct 691 (“The distinction between the two grounds is significant. In the instance of nonjusticiability, consideration of the cause is not wholly and immediately foreclosed; rather, the Court's inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded''). GINSBURG, Circuit Judge, concurring: We have held that actions based upon denial of security clearance do not merely fail to state a claim, but are beyond the reach of judicial review. See Bennett, 425 F.3d at 1001 (“Because the authority to issue a security clearance is a discretionary function of the Executive Branch and involves the complex area of foreign relations and national security, employment actions based on denial of security clearance are not subject to judicial review”); Ryan, 168 F.3d at 524 (holding “an adverse employment action based on denial or revocation of a security clearance is not actionable under Title VII”); Krc, 905 F.2d at 395. That a plaintiff makes a claim that is not justiciable because committed to executive discretion does not mean the court lacks subject matter jurisdiction over his case, as the opinion of the court helps to clarify. Upon a proper motion, a court should dismiss the case for failure to state a claim. It follows, however, that a court must decline to adjudicate a nonjusticiable claim even if the defendant does not move to dismiss it under FED. R. CIV. P. 12(b)(6). See Luftig v. McNamara, 373 F.2d 664, 665 (D.C.Cir.1967)" } ]

[ { "docid": "17748049", "title": "", "text": "mere formalities does not relieve [his] burden to meet jurisdictional requirements.’ ” Zulueta v. United States, No. 2013-5067, 2014 WL 114201, at *2 (Fed.Cir.2014) (quoting Kelley v. Sec’y, U.S. Dep’t of Labor, 812 F.2d 1378,1380 (Fed.Cir.1987)). In evaluating subject-matter jurisdiction, “the allegations stated in the complaint are taken as true and jurisdiction is decided on the face of the pleadings.” Folden v. United States, 379 F.3d 1344, 1354 (Fed.Cir. 2004). The court may question its own subject-matter jurisdiction at any time. Rule of the United States Court of Federal Claims (RCFC) 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”); Folden, 379 F.3d at 1354 (“Subject-matter jurisdiction may be challenged at any time ... by the court sua sponte.”). Subject-matter jurisdiction, which involves a court’s power to hear a case, may “never be forfeited or waived.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). The Tucker Act provides for this court’s jurisdiction over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (2012) (emphasis added). “This Court lacks jurisdiction to consider claims which amount to collateral attacks on criminal convictions.” See Perkins v. United States, No. 13-023C, 2013 WL 3958350, at *3 (Fed.Cl. July 31, 2013) (citing Carter v. United States, 228 Ct.Cl. 898, 900 (1981) (rejecting claim, under various constitutional provisions, for money damages and correction of criminal records, and holding that “[i]f plaintiff had valid constitutional defenses to his convictions on criminal charges, he should have asserted them on appeal in the proper court. This is not such a court and he cannot here be heard to make a collateral attack on his convictions under the guise of a claim for money" }, { "docid": "8481072", "title": "", "text": "that provision in pre-1996 cases remains valid. Our decision turns on the issue of subject matter jurisdiction: whether § 6404(h)’s grant of jurisdiction to the Tax Court is exclusive or whether the Court of Federal Claims has concurrent jurisdiction to review interest abatement claims. It is well established that, without subject matter jurisdiction, the Court of Federal Claims, or any court, lacks power to determine the case before it. United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). “A party seeking the exercise of jurisdiction in its favor has the burden of establishing that such jurisdiction exists.” Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991). The subject matter jurisdiction of the Court of Federal Claims is limited. See 28 U.S.C. §§ 1491-1509. We are also mindful of “the black letter law that the United States as a sovereign may not be sued unless it consents.” Flexfab, L.L.C. v. United States, 424 F.3d 1254, 1263 (Fed.Cir.2005) (citing United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171 (1882)). “We thus are careful not to open the courthouse doors to those falling victim to the statements of unauthorized government agents, lest we broaden improperly the government’s waiver of immunity from suit in these cases.” Id. at 1264 (citing Chancellor Manor v. United States, 331 F.3d 891, 898 (Fed.Cir.2003) (“Waivers of sovereign immunity are construed narrowly.”)). Here, we agree with the government that § 6404(h) grants the Tax Court exclusive jurisdiction over interest abatement claims, and that the Court of Federal Claims thus does not have subject matter jurisdiction to review those claims. When interpreting a statute, we look first to the language of the statute. United States v. Wells, 519 U.S. 482, 490, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997). Section 6404(h) grants jurisdiction to a particular court, the Tax Court, to review IRS denials of interest abatements, and also specifies a particular standard, abuse of discretion, to be applied by that court: the “Tax Court shall have jurisdiction ... to determine whether the Secretary’s failure to abate interest under this section" }, { "docid": "23034360", "title": "", "text": "the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred. 28 U.S.C. § 1631. In order for a case to be transferred pursuant to the federal transfer statute, the transferee court must be able to hear the matter upon transfer. See General Atomics v. United States Nuclear Regulatory Comm’n, 75 F.3d 536, 540 (9th Cir.1996). “If the transferee court lacks jurisdiction, the transfer is obviously improper.” Id. (citing Clark v. Busey, 959 F.2d 808, 812 (9th Cir.1992)). Ordinarily, under section 1631, jurisdiction is determined as of the filing of the initial complaint and, after vesting, cannot be ousted by subsequent events. See F. Alderete Gen. Contractors v. United States, 715 F.2d 1476, 1480 (Fed.Cir.1983). However, when subsequent events render the case non-justiciable so that no federal court would have jurisdiction, then transfer is inappropriate. Regardless of which construction of the pleadings we might adopt, jurisdiction would not lie and transfer would be inappropriate. If we construe Hose’s petition as one merely seeking a stay, the case is moot because of Hose’s deportation. With no extant controversy, the case would not qualify for federal court adjudication. See Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). Thus, transfer would be improper. If we adopt Hose’s construction of the pleadings, transfer would be inappropriate, because the transitional rules prevent this court from reviewing exclusion orders when the petitioner has departed the country. The transitional rules incorporate 8 U.S.C. § 1105a(c), which provided in relevant part: An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him" }, { "docid": "18300217", "title": "", "text": "the three entries were protested at the wrong port, their protest was not “in accordance with regulations prescribed by the Secretary.” See 19 U.S.C. § 1514(c)(1). The government therefore argues that their liquidation became final by operation of 19 U.S.C. § 1514(a). See Def.’s Br. at 7-8 (referencing Po-Chien, Inc. v. United States, 3 CIT 17, 18 (1982) (liquidation final and conclusive against the importer since it had not timely filed a valid protest with the proper Customs district) and Grover Piston Ring Co. v. United States, 752 F.2d 626, 627 (Fed.Cir.1985) (failure to include entry numbers as part of the content of the protest caused the protest to be invalid with respect to those entry numbers)). Avecia responds that the issue is only being raised for the first time in post-trial briefing and was therefore waived, or else the protest was valid. Pl.’s Reply at 2-7. Generally speaking, the terms of the government’s consent to be sued in a particular court define the court’s jurisdiction to entertain the suit, must be strictly observed, and are not subject to implied exceptions. NEC Corp. v. United States, 806 F.2d 247, 249 (Fed.Cir.1986) (citations omitted). “[S]ubject-matter jurisdiction, because it involves the court’s power to hear a case, can never be forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002). Therefore, courts have an independent obligation to “police” their own subject-matter jurisdiction, even in the absence of a challenge from a party. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-84, 119 S.Ct. 1563, 1570, 143 L.Ed.2d 760 (1999) (citations omitted). Under 28 U.S.C. § 1581(a), this court possesses exclusive jurisdiction over any civil action commenced to contest the denial of a protest under 19 U.S.C. § 1515, which provides for the review of protests filed in accordance with 19 U.S.C. § 1514 concerning decisions of the U.S. Customs and Border Protection and its predecessor organization(s). The terms of section 1581(a) “limit[ ] the jurisdiction of the Court of International Trade to appeals from denials of valid protests. Thus, the court lacks" }, { "docid": "17748048", "title": "", "text": "cited to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b) (2012), as authorizing his claim against the United States for damages. Id. at 1. Plaintiff contends that the FBI agents, federal judges, and federal prosecutors involved in the investigation, prosecution and adjudication of the criminal ease against him may be held liable, in their personal capacities, when individual civil suits, such as this one, are brought. See id. at 7-8. Plaintiff seeks the following relief: (1) the return of his “illegally seized” personal property; (2) a full “expunge[ment]” of his “entire criminal record”; (3) three trillion dollars, for inter alia, wrongful imprisonment, loss of wages, invasion of privacy, and emotional distress; and (4) release from his current imprisonment in a federal penitentiary. See id. at 9. II. LEGAL STANDARD Complaints filed by pro se plaintiffs are held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Nevertheless, “‘the leniency afforded to a pro se litigant with respect to mere formalities does not relieve [his] burden to meet jurisdictional requirements.’ ” Zulueta v. United States, No. 2013-5067, 2014 WL 114201, at *2 (Fed.Cir.2014) (quoting Kelley v. Sec’y, U.S. Dep’t of Labor, 812 F.2d 1378,1380 (Fed.Cir.1987)). In evaluating subject-matter jurisdiction, “the allegations stated in the complaint are taken as true and jurisdiction is decided on the face of the pleadings.” Folden v. United States, 379 F.3d 1344, 1354 (Fed.Cir. 2004). The court may question its own subject-matter jurisdiction at any time. Rule of the United States Court of Federal Claims (RCFC) 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”); Folden, 379 F.3d at 1354 (“Subject-matter jurisdiction may be challenged at any time ... by the court sua sponte.”). Subject-matter jurisdiction, which involves a court’s power to hear a case, may “never be forfeited or waived.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781," }, { "docid": "19349278", "title": "", "text": "procurement.” 28 U.S.C. § 1491(b)(1). In this case, the Government challenges the Court’s jurisdiction to entertain Allied’s claims. (Def.’s Mot. 1-2.) When considering a motion to dismiss pursuant to RCFC 12(b)(1), the Court must “presume all undisputed factual allegations to be true and construe all reasonable inferences in favor of plaintiff.” A & D Fire Prot., Inc., 72 Fed.Cl. at 131 (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). The plaintiff bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence. Reynolds, 846 F.2d at 748; Cubic Def. Sys., Inc. v. United States, 45 Fed.Cl. 239, 245 (1999) (citing Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed.Cir.1993)). If the Court finds that it lacks subject matter jurisdiction, then it must dismiss the claim. A & D Fire Prot., Inc., 72 Fed.Cl. at 131. Discussion A. Standing Standing is a jurisdictional issue and the party invoking federal jurisdiction bears the burden of establishing by a preponderance of the evidence that it has standing to pursue its claims. United Enter. & Assoc. v. United States, 70 Fed.Cl. 1, 18 (2006) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)); see also Myers Investigative & Sec. Serv., Inc. v. United States, 275 F.3d 1366, 1369-70 (Fed.Cir.2002). Under 28 U.S.C. § 1491(b), only interested parties have standing to protest a contract award in this Court. “Interested parties” are “limited to actual or prospective bidders or offerors whose direct economic interest would be affected by the award of the contract or by failure to award the contract.” Amer. Fed’n of Gov’t Employees v. United States, 258 F.3d 1294, 1302 (Fed.Cir.2001). Allied therefore must satisfy a two-part burden to demonstrate that it has standing to assert its claims: (1) that it was an actual or prospective bidder; and (2) that it possesses “direct" }, { "docid": "16122436", "title": "", "text": "not move to dismiss whether or not an implied-in-fact contract could have come into existence after October 19, 2013, the date NASA cancelled the prime contract between Flight Test Associates and NASA. Defendant maintains, however, that any im plied-in-law contract claims are outside of this court’s jurisdiction under the Tucker Act. Regarding plaintiffs breach of the covenant of good faith and fair dealing claim, defendant argues that plaintiff states a claim upon which relief cannot be granted, because the covenant does not apply “[bjecause the complaint acknowledges that the parties have no express contract.” Finally, regarding plaintiffs quantum meruit claim, defendant argues that the claim is an implied-in-law contract argument, “outside this Court’s jurisdiction.” DISCUSSION It is well established that ‘“subject-matter jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or waived.’ ” Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). “[Federal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.” Henderson ex rel. Henderson v. Shinseki, — U.S. —, 131 S.Ct. 1197, 1202, 179 L.Ed.2d 159 (2011); see also Gonzalez v. Thaler, — U.S. —, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012) (“When a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented.”); Hertz Corp. v. Friend, 559 U.S. 77, 94, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010) (“Courts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 514, 126 S.Ct. 1235)); Avid Identification Sys., Inc. v. Crystal Import Corp., 603 F.3d 967, 971 (Fed.Cir.) (“This court must always determine for itself whether it has jurisdiction to hear the case before it, even when the parties do not raise or" }, { "docid": "4548626", "title": "", "text": "416 U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (quoting Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964)); Technical Innovation, Inc. v. United States, 93 Fed.Cl. 276, 278 (2010). Thus; mootness presents a question of subject matter jurisdiction. See North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971). When a matter before this court is subject to review by the Federal Circuit, an Article III court, see 28 U.S.C. §§ 1295(a)(3), 2522; see also Seaboard Lumber Co. v. Unit ed States, 903 F.2d 1560, 1562 (Fed.Cir.1990), mootness is not merely a matter of prudence. Technical Innovation, 93 Fed.Cl. at 278. Rather, each “ease or controversy,” 28 U.S.C. §§ 2517, 2519, which Congress has placed under the jurisdiction of both our court and the Federal Circuit must necessarily meet the Article III justiciability requirements. See Technical Innovation, 93 Fed.Cl. at 278; Am. Mar. Transp., Inc. v. United States, 18 Cl.Ct. 283, 290-91 (1989); Welsh v. United States, 2 Cl.Ct. 417, 420-21 (1983). As a question of jurisdiction, mootness is an exception to “the long-standing rule in the Federal courts that jurisdiction is determined at the time the suit is filed and, after vesting, cannot be ousted by subsequent events, including action by the parties.” F. Alderete Gen. Contractors, Inc. v. United States, 715 F.2d 1476, 1480 (Fed.Cir.1983). The Supreme Court has explained that “jurisdiction, properly acquired, may abate if the ease becomes moot,” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) — which happens when it is unreasonable to expect “that the alleged violation will recur,” and when “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Id. (citations omitted). In other words, a ease will be moot where it no longer presents a “live” controversy or the parties no longer have a “ ‘legally cognizable interest in the outcome’ ” of the litigation. See Rice Servs., Ltd. v. United States, 405 F.3d 1017, 1019 n. 3 (Fed.Cir.2005) (quoting" }, { "docid": "19133068", "title": "", "text": "Bliss until this bid protest could be adjudicated. DISCUSSION I. Jurisdiction This court “shall have jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1) (2006). The jurisdictional grant is “without regard to whether suit is instituted before or after the contract is awarded.” Id. As a threshold jurisdictional matter, however, the plaintiff in a bid protest must show that it has standing to bring the suit. Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1319 (Fed.Cir.2003) (ITAC); Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369 (Fed.Cir.2002) (citation omitted). II. Standard of Review under RCFC 12(b)(1) In rendering a decision on a motion to dismiss for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1), this court must presume all undisputed factual allegations to be true and must construe all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed.Cir.1988). The relevant issue in a motion to dismiss under RCFC 12(b)(1) “ ‘is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.’” Patton v. United States, 64 Fed.Cl. 768, 773 (2005) (quoting Scheuer, 416 U.S. at 236, 94 S.Ct. 1683). The plaintiff bears the burden of establishing subject matter jurisdiction, Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed.Cir.1998) (citing McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)), and must do so by a preponderance of the evidence, Reynolds, 846 F.2d at 748 (citations omitted). The" }, { "docid": "19049829", "title": "", "text": "into the jurisdictional confines of the CDA are futile. See Sheridan Corp., 95 Fed.Cl. at 150 (rejecting the contention that a challenge of corrective action was “a challenge of the Government’s ability to terminate a contract for convenience” and therefore “beyond the Court’s jurisdiction,” noting that the plaintiff was “not challenging some abstract ability of the Government to terminate for convenience—it [was] challenging the propriety of the Government’s chosen corrective action in relation to the RFP”); Centech Grp., Inc., 78 Fed.Cl. at 507 (holding that the plaintiff was asserting a claim under the court’s bid protest, not CDA, jurisdiction, noting that the plaintiff sought “to overturn preaward agency conduct in an ongoing procurement rescinding its original award and reopening discussions” and not “termination for convenience costs” or the reversal of a contracting officer’s final decision). The United States further argues that, contrary to SA-TECH’s contention, the court lacks jurisdiction under the fourth prong of 28 U.S.C. § 1491(b)(1) because SA-TECH has not alleged a violation of statute or regulation. Such an allegation is unnecessary, however, when a eom-plaint, like SA-TECH’s, falls within the first prong of section 1491(b)(1). B. Justiciability In addition to urging that the court lacks jurisdiction to entertain SA-TECH’s protest, the United States seeks the dismissal of SA-TECH’s protest as nonjusticiable for lack of standing and as not ripe for judicial review. The court’s jurisdictional and justiciability inquiries are distinct. Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Murphy v. United States, 993 F.2d 871, 872 (Fed.Cir.1993). An issue is justiciable if it is within the court’s competency to supply relief. Murphy, 993 F.2d at 872; see also Fisher v. United States, 402 F.3d 1167, 1176 (Fed.Cir.2005) (panel portion) (noting that justiciability “encompasses a number of doctrines under which courts will decline to hear and decide a cause,” including the “doctrines of standing, mootness, ripeness, and political question”). The court may therefore find that it possesses jurisdiction over the subject matter of a case but that the dispute is nonjusticiable. Baker, 369 U.S. at 198, 82 S.Ct. 691; Oryszak v. Sullivan," }, { "docid": "629278", "title": "", "text": "from this approach. ‘ Accordingly, the court examines only whether plaintiff meets the standing requirements of the Tucker Act. See Jacobs Tech., 100 Fed.Cl. at 185 (\"Article III standing requirements are subsumed under the Tucker Act requirements.”). . \"The court’s inquiry into the justiciability of a case is distinct from its inquiry into whether it has jurisdiction over the case’s subject matter. In other words, the court may find that it possesses jurisdiction over the subject matter of a case but that the dispute is nevertheless nonjusticiable.\" B & B Med. Servs., Inc., v. United States (B & B), No. 13-463C, 2014 WL 3587275, at *5 (Fed. Cl. June 23, 2014) (internal citations omitted); Coastal Envtl. Grp., Inc. v. United States, 114 Fed.Cl. 124, 129-30 (2013) (same); see Madison Servs., Inc. v. United States, 90 Fed.Cl. 673, 677 (2009) (\"Notwithstanding the court's special jurisdiction and the unique nature of a bid protest, the instant matter is also subject to overarching [justiciability] doctrines governing all suits in federal court.”); CCL Serv. Corp. v. United States (CCL), 43 Fed.Cl. 680, 688 (1999) (stating that the court's jurisdiction over a bid protest “is of no material consequence ... if [the agency's] actions in canceling the solicitation render plaintiffs’ challenge to these awards moot”); cf. Madison Servs., 90 Fed.Cl. at 680 n.3 (observing that there is \"lingering uncertainty as to whether, and when, [the justiciability doctrines of] ripeness or mootness may operate as a limit upon the jurisdiction of a federal court”). But see B & B Med. Servs., Inc. v. United States, 114 Fed.Cl. 658, 662 (2014) (\"When a matter becomes moot, we lose subject-matter jurisdiction over it, and dismissal under RCFC 12(b)(1) is in order.”); CBY Design Builders v. United States, 105 Fed.Cl. 303, 328-29 (2012) (similar); Tech. Innovation, Inc. v. United States, 93 Fed.Cl. 276, 278 (2010) (“[M]ootness presents a question of subject matter jurisdiction.”). . Defendant points to HomeSource Real Estate Asset Services, Inc. v. United States, 94 Fed.Cl. 466 (2010), aff'd, 418 Fed.Appx. 922 (Fed.Cir.2011), and Dismas Chanties, Inc. v. United States, 75 Fed.Cl. 59 (2007), as support for" }, { "docid": "19049830", "title": "", "text": "when a eom-plaint, like SA-TECH’s, falls within the first prong of section 1491(b)(1). B. Justiciability In addition to urging that the court lacks jurisdiction to entertain SA-TECH’s protest, the United States seeks the dismissal of SA-TECH’s protest as nonjusticiable for lack of standing and as not ripe for judicial review. The court’s jurisdictional and justiciability inquiries are distinct. Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Murphy v. United States, 993 F.2d 871, 872 (Fed.Cir.1993). An issue is justiciable if it is within the court’s competency to supply relief. Murphy, 993 F.2d at 872; see also Fisher v. United States, 402 F.3d 1167, 1176 (Fed.Cir.2005) (panel portion) (noting that justiciability “encompasses a number of doctrines under which courts will decline to hear and decide a cause,” including the “doctrines of standing, mootness, ripeness, and political question”). The court may therefore find that it possesses jurisdiction over the subject matter of a case but that the dispute is nonjusticiable. Baker, 369 U.S. at 198, 82 S.Ct. 691; Oryszak v. Sullivan, 576 F.3d 522, 526 n. 3 (D.C.Cir.2009) (“That a particular dispute is nonjusticiable, however, does not mean the court lacks jurisdiction over the subject matter.”). Having found that it possesses jurisdiction over the subject matter of SA-TECH’s complaint, the court turns to the justiciability issues raised by the United States, beginning with the question of SA-TECH’s standing. 1. SA-TECH Has Standing to Protest “[T]he question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The standing inquiry involves both Article III “case or controversy” limitations on federal jurisdiction and “prudential limitations on its exercise.” Id. SA-TECH bears the burden of establishing its standing to protest. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “The standing issue in this case is framed by 28 U.S.C. § 1491(b)(1), which ... imposes more stringent standing requirements than Article III.” Weeks Marine, Inc. v." }, { "docid": "15404559", "title": "", "text": "The government and CWGT have moved to dismiss Omega’s claims under RCFC 12(b)(1) for lack of subject matter jurisdiction. Both parties argue that Omega lacks standing to challenge the award of the task orders to CWGT because Omega is not an interested party that was substantially prejudiced by the alleged errors in the procurement process. Furthermore, both parties contend that the court lacks jurisdiction to hear Omega’s “bad faith termination” claims regarding its contracts with DOJ because Omega did not comply with the mandatory exhaustion requirements set forth by the CDA, 41 U.S.C. §§ 605(a)-(c), which requires a contractor to submit any contract-related claims against the government to the contracting officer before filing a claim with this court. In considering a motion under RCFC 12(b)(1) to dismiss for lack of subject matter jurisdiction, the court is generally “obligated to assume all factual allegations to be true and to draw all reasonable inferences in plaintiffs favor.” Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). The ultimate burden, however, is on the plaintiff to prove that the court has jurisdiction to hear its claims. See, e.g., Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991) (“A party seeking the exercise of jurisdiction in its favor has the burden of establishing that such jurisdiction exists.”). Standing is a matter of jurisdiction, and a bid protestor invoking the jurisdiction of this court must establish its standing to do so. See, e.g., Rex Serv. Corp. v. United States, 448 F.3d 1305, 1307 (Fed.Cir.2006); Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1369 (Fed.Cir.2002); A & D Fire Prot., Inc. v. United States, 72 Fed.Cl. 126, 131 (2006). The portion of the Tucker Act that confers jurisdiction upon this court to hear bid protest claims provides: Both the Unites [sic] States Court of Federal Claims and the district courts of the United States shall have jurisdiction to render judgment on an action by an interested party objecting to a solicitation by a Federal agency for bids" }, { "docid": "15597792", "title": "", "text": "entered as plaintiffs and ultimately a joint amended complaint was filed listing as defendants Nomura Asset, the eight trusts, the trusts’ underwriters and five officers and directors of Nomura Asset. The gravamen of the complaint is that the offering documents contained false or misleading statements, and as a result plaintiffs purchased securities whose true value when purchased was less than what was paid for them. The suit was cast as a class action comprised of purchasers of the certificates of the eight trusts covered by the two registration statements. Defendants filed motions to dismiss for lack of standing, Fed.R.Civ.P. 12(b)(1), and for failure to state a claim, Fed.R.Civ.P. 12(b)(6). On September 30, 2009, the district court granted defendants’ motions to dismiss and entered judgment. Claims related to the trusts whose certificates had been purchased by none of the named plaintiffs were dismissed for lack of Article III standing; claims relating to the other two trusts were dismissed on statutory grounds; and no class was ever certified. The present appeal followed. Jurisdiction. At the outset, plaintiffs say that the original action brought in state court may have been improperly removed and that the district court may thus have lacked subject matter jurisdiction; although plaintiffs did not contest jurisdiction until they lost the case in the district court, lack of subject matter jurisdiction can be noticed at any time and cannot be waived. United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). But we conclude that any flaw in the removal was not one of subject matter jurisdiction and therefore has been waived or forfeited for lack of a timely objection. 28 U.S.C. § 1447(c) (2006) (requiring objection within 30 days of removal). Removal is ordinarily permitted in civil actions where the same case could originally have been brought in federal court “[e]xcept as otherwise expressly provided by Act of Congress.” 28 U.S.C. § 1441(a). One exception — section 22 of the Securities Act, 15 U.S.C. §" }, { "docid": "8481071", "title": "", "text": "post-payment tax refund actions, such as § 6404(e)(1) claims. The Hincks contend that Congress would have expressly mandated exclusive jurisdiction in the statute if it had intended to do so; they assert that an interpretation of the statute contrary to their position would frustrate the intent of the Taxpayer Bill of Rights 2 to “provide for increased protections of taxpayer rights.” The government responds that the Court of Federal Claims correctly determined that it derives its jurisdiction over interest abatement claims from the Tucker Act. However, the government asserts that the Court of Federal Claims may not review the IRS’s denial of interest abate-ments because § 6404(h) consigns review of the IRS’s determinations exclusively to the Tax Court. The government also contends that interest abatement decisions are not reviewable in the Court of Federal Claims because there are no relevant factors or justiciable standards for determining when the IRS must abate interest. Finally, the government argues that because the version of § 6404(e)(1) at issue is virtually identical to the original version, the analysis of that provision in pre-1996 cases remains valid. Our decision turns on the issue of subject matter jurisdiction: whether § 6404(h)’s grant of jurisdiction to the Tax Court is exclusive or whether the Court of Federal Claims has concurrent jurisdiction to review interest abatement claims. It is well established that, without subject matter jurisdiction, the Court of Federal Claims, or any court, lacks power to determine the case before it. United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). “A party seeking the exercise of jurisdiction in its favor has the burden of establishing that such jurisdiction exists.” Rocovich v. United States, 933 F.2d 991, 993 (Fed.Cir.1991). The subject matter jurisdiction of the Court of Federal Claims is limited. See 28 U.S.C. §§ 1491-1509. We are also mindful of “the black letter law that the United States as a sovereign may not be sued unless it consents.” Flexfab, L.L.C. v. United States, 424 F.3d 1254, 1263 (Fed.Cir.2005) (citing United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed." }, { "docid": "4548627", "title": "", "text": "417, 420-21 (1983). As a question of jurisdiction, mootness is an exception to “the long-standing rule in the Federal courts that jurisdiction is determined at the time the suit is filed and, after vesting, cannot be ousted by subsequent events, including action by the parties.” F. Alderete Gen. Contractors, Inc. v. United States, 715 F.2d 1476, 1480 (Fed.Cir.1983). The Supreme Court has explained that “jurisdiction, properly acquired, may abate if the ease becomes moot,” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) — which happens when it is unreasonable to expect “that the alleged violation will recur,” and when “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Id. (citations omitted). In other words, a ease will be moot where it no longer presents a “live” controversy or the parties no longer have a “ ‘legally cognizable interest in the outcome’ ” of the litigation. See Rice Servs., Ltd. v. United States, 405 F.3d 1017, 1019 n. 3 (Fed.Cir.2005) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)); see also Davis, 440 U.S. at 631, 99 S.Ct. 1379; Technical Innovation, 93 Fed.Cl. at 279; 15 James Wm. Moore et al., Moore’s Federal Practice § 101.90 (3d ed. 2009). Moreover, plaintiff must also demonstrate that it has been prejudiced by the Corps’s decision to conduct the third investigation, in the context of standing. See Info. Tech. & Appl’ns Corp. v. U.S., 316 F.3d 1312, 1319 (Fed.Cir.2003). In bid protests, prejudice “is a necessary element of standing,” and in all cases “standing is a threshold jurisdictional issue.” Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366,1369-70 (Fed.Cir.2002); see also Labatt Food Serv., Inc. v. United States, 577 F.3d 1375, 1378-79 (Fed.Cir.2009). Under the ADRA, an offeror has standing to challenge procurement decisions that affect its “direct economic interest,” see Am. Fed’n of Gov’t Employees, 258 F.3d at 1302 (borrowing the definition from 31 U.S.C. § 3551(2)), which in a pre-award protest requires alleging “a nontrivial competitive injury which" }, { "docid": "23044524", "title": "", "text": "Murphy, 319 U.S. 412, 415, 63 S.Ct. 1126, 87 L.Ed. 1483 (1943)). The government argues alternatively that even though a challenge to subject-matter jurisdiction can be made at any time, Smith did not establish a rule of subject-matter jurisdiction. The government maintains further that even if it did, the “meaning of jurisdiction has changed in the intervening 46 years since the Supreme Court decided Smith.” See United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (noting that an earlier Court decision’s elastic concept of jurisdiction is not what the term “jurisdiction” means today — “the courts’ statutory or constitutional power to adjudicate a case” — and holding that “defects in an indictment do not deprive a court of its power to adjudicate a case” (emphasis added)). Initially, we note our agreement with the government’s position that judicial policy strongly favors that convictions and sentences become final. Any challenges to a criminal judgment after the appellate process is complete therefore may generally be brought only pursuant to a specific authorization for collateral review, such as 28 U.S.C. § 2255. But when a party suggests the absence of subject-matter jurisdiction, even at this late stage of a case, the party questions not only the original conviction, but the power to sentence and the power to correct or reduce the sentence under Rule 35(b), and therefore we must address it. See generally Cotton, 535 U.S. at 630, 122 S.Ct. 1781; Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). This is because subject-matter jurisdiction can “never be forfeited or waived”; “it involves a court’s power to hear a case.” Cotton, 535 U.S. at 630, 122 S.Ct. 1781. And any action by a court without subject-matter jurisdiction is “ultra vires” and therefore void. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (quoting Steel Co., 523 U.S. at 101-02, 118 S.Ct. 1003). To support his position that the district court did not have subject-matter jurisdiction to consider the Rule 35(b) motions," }, { "docid": "19045385", "title": "", "text": "appears to be a member of the Texas State Bar Association, with his own law practice in Houston, Texas. On the first page of the 2002 Form 1040 received in Austin, Texas by the IRS on July 27, 2006, plaintiffs’ names appear as Calvin C. and Evangeline M. Jackson. On the signature page of the same Form 1040, signed on July 8, 2006, plaintiff Calvin C. Jackson lists his phone number as 832-474-6161. That phone number matches the phone number for Attorney Calvin C. Jackson at the Jackson Law Firm Office in Houston, Texas. See The Jackson Law Office, Attorney Profile, Available at http:// calvinjackson.com/form02.html; State Bar of Texas, Available at http://www.texasbar.com. Consequently, plaintiffs failure to submit timely filings, including to defendant’s motion to dismiss, is less explainable or excusable than if attributable to a typical, non-lawyer, pro se plaintiff. “ ‘[S]ubject-matter jurisdiction, because it involves a court’s power to hear a ease, can never be forfeited or waived.’ ” Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). “[Fjederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.” Henderson ex rel. Henderson v. Shinseki, — U.S.-, 131 S.Ct. 1197, 1202, 179 L.Ed.2d 159 (2011); see also Hertz Corp. v. Friend, — U.S. -, 130 S.Ct. 1181, 1193, 175 L.Ed.2d 1029 (2010) (“Courts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it.” (citing Arbaugh v. Y & H Corp., 546 U.S. at 514, 126 S.Ct. 1235)); Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1342 (Fed.Cir.2001) (“[A] court has a duty to inquire into its jurisdiction to hear and decide a ease.” (citing Johannsen v. Pay Less Drug Stores N.W., Inc., 918 F.2d 160, 161 (Fed.Cir.1990))); View Eng’g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed.Cir.1997) (“[C]ourts must" }, { "docid": "4548625", "title": "", "text": "also argues that CBY lacks standing to challenge the third OCI investigation because the investigation did not cause any injury to CBY that this court could redress. Id. at 26-27, 29-30, 35-36. In response, CBY argues that the agency-level protests filed by Bechtel and PCCP demonstrate that the OCI matter is still a live controversy, with the results of the third investigation thus still open to challenge. Pl.’s Opp’n at 16-17. Plaintiff notes that PCCP’s protest seeks to have CBY disqualified from the procurement, and thus if PCCP is successful this will cost it the contract already awarded and exclude it from competing under the resolicitation. Id. at 16-18; see Def.’s Reply in Supp. Mot. to Dismiss at 2 (“Def.’s Dism. Reply”). The mootness of a case is properly the subject of an RCFC 12(b)(1) motion. “The inability of the federal judiciary ‘to review moot cases derives from the requirement of Art. Ill of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.’” DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (quoting Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964)); Technical Innovation, Inc. v. United States, 93 Fed.Cl. 276, 278 (2010). Thus; mootness presents a question of subject matter jurisdiction. See North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971). When a matter before this court is subject to review by the Federal Circuit, an Article III court, see 28 U.S.C. §§ 1295(a)(3), 2522; see also Seaboard Lumber Co. v. Unit ed States, 903 F.2d 1560, 1562 (Fed.Cir.1990), mootness is not merely a matter of prudence. Technical Innovation, 93 Fed.Cl. at 278. Rather, each “ease or controversy,” 28 U.S.C. §§ 2517, 2519, which Congress has placed under the jurisdiction of both our court and the Federal Circuit must necessarily meet the Article III justiciability requirements. See Technical Innovation, 93 Fed.Cl. at 278; Am. Mar. Transp., Inc. v. United States, 18 Cl.Ct. 283, 290-91 (1989); Welsh v. United States, 2 Cl.Ct." }, { "docid": "16122435", "title": "", "text": "contract with plaintiff, and (3) the covenant of good faith and fair dealing. Finally, plaintiff (4) argues for recovery under a theory of quantum meruit. Plaintiff seeks “$562,559.69 for services provided,” interest, attorney’s fees, and costs of the suit. In response, defendant filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted, pursuant to RCFC 12(b)(1) and RCFC 12(b)(6). Regarding plaintiffs breach of express contract claim, defendant maintains that, “[t]he contracts attached to the complaint demonstrate that the Government, through its agency NASA, contracted only with FTA for the procurement of flight services, and the prime contract had no provision indicating that the Government would be directly liable to FTA’s vendors.” Defendant also contends that plaintiff is not an intended third party beneficiary under the prime contract, as “[t]he complaint does not allege that the entire purpose of any provision of the prime contract is to grant Threshold a right to payment.” Regarding plaintiffs breach of implied contract claim, defendant does not move to dismiss whether or not an implied-in-fact contract could have come into existence after October 19, 2013, the date NASA cancelled the prime contract between Flight Test Associates and NASA. Defendant maintains, however, that any im plied-in-law contract claims are outside of this court’s jurisdiction under the Tucker Act. Regarding plaintiffs breach of the covenant of good faith and fair dealing claim, defendant argues that plaintiff states a claim upon which relief cannot be granted, because the covenant does not apply “[bjecause the complaint acknowledges that the parties have no express contract.” Finally, regarding plaintiffs quantum meruit claim, defendant argues that the claim is an implied-in-law contract argument, “outside this Court’s jurisdiction.” DISCUSSION It is well established that ‘“subject-matter jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or waived.’ ” Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). “[Federal courts have" } ]

[ { "docid": "11940433", "title": "", "text": "letter of credit were then sent by the Pauls Valley bank by railway express to its correspondent, Liberty National Bank at Oklahoma City, Okla., which bank forwarded it to Fort Worth National Bank of Fort Worth, Texas, for collection. The Fort Worth bank, in the regular course of its business, mailed Christian’s check and letter of credit, with an accompanying collection letter, to the Tyler bank. The mailing of this letter by the Fort Worth Bank at Fort Worth, Texas, is the basis of the indictment. The law is well settled that if a person devises a scheme to defratid, in the execution of which a letter is mailed, the crime denounced by the statute is committed. It is immaterial whether the person or persons devising the scheme had intended to use the mails or whether anybody was actually defrauded. The mailing of the letter may be by an innocent agent, unconnected with the schemers. Hart v. United Stales, 5 Cir., 112 F.2d 128, and authorities cited therein. However, the mealing or causing the letter to be mailed is the crime, not merely devising the fraudulent scheme, and it is vital to the commission of the offense that the letter be in furtherance of the scheme. In this case it is apparent the purpose of the scheme to defraud Christian had been completely accomplished when the Pauls Valley Bank accepted his check on the Tyler bank and the money was paid to Rudder. Christian was then and there defrauded. Up to that point the mails had not been used at all. Christian could not have legally done anything to stop payment of his check and was obligated to reimburse the Pauls Valley Bank for cashing it. While the mails were incidentally used, the defendants had no interest whatever in that transaction. None of the banks involved, was their agent, innocent or otherwise. The mailing of the letter from Fort Worth to Tyler was not in furtherance of the scheme and was not “caused” by them. The facts do not support the conviction. Spillers v. United States, 5 Cir., 47 F.2d" } ]

[ { "docid": "2592169", "title": "", "text": "the state authorities; that upon learning petitioner had tuberculosis and was an ex-service man drawing compensation from the Government the service officer of the local American Legion Post obtained his hospital and other records; that the state authorities concluded that inasmuch as the state penitentiary had no facilities for handling a tubercular it would be to the prisoner’s in terest to turn him over to the federal authorities for prosecution under the mail fraud statute; and that the case had more than the usual attention, chiefly in the interest of the prisoner. The fraud charged in each of these counts standing alone is not within the jurisdiction of the federal court, but it may be brought within- that jurisdiction by charging that defendant used the United States mail “for the purpose of executing such scheme or artifice or attempting so to do”. That was charged here, but the charge clearly shows that the United States mail could not have been used for the purpose of executing or in attempting to execute the fraudulent scheme, because the mailing did not take place until after the defendant had induced the parties named to accept his fraudulent check for merchandise. He had thus accomplished all he set out to do in falsely representing that he had money on deposit in the banks. McNear v. United States, 10 Cir., 60 F.2d 861; Armstrong v. United States, 10 Cir., 65 F.2d 853; Little v. United States, 10 Cir., 73 F.2d 861; Merrill v. United States, 9 Cir., 95 F.2d 669. In Stewart v. United States, 8 Cir., 119 F. 89, 95, Circuit Judge Thayer said this on the point: “Another observation to be made concerning the indictment is this: That while the fraudulent scheme, as described, was one whereby the mails were to be employed to induce persons to come to Webb City, to be afterwards defrauded, yet the letter which was deposited in the mails by Gillett, on which the third count is founded, does not seem to have been written to accomplish any such purpose, and for that reason it can hardly be" }, { "docid": "16954035", "title": "", "text": "Section 215 of the Criminal Code does not exist. Stapp et al. v. United States, 5 Cir., 120 F.2d 898; Spillers v. United States, 5 Cir., 47 F.2d 893; Dyhre v. Hudspeth, 10 Cir., 106 F.2d 286; McNear v. United States, 10 Cir., 60 F.2d 861; McLendon v. United States, 6 Cir., 2 F.2d 660; United States v. Dale, D.C., 230 F. 750; United States v. Leche, D.C., 34 F.Supp. 982, 986; United States v. Siebricht, 2 Cir., 59 F.2d 976; Mitchell v. United States, 10 Cir., 118 F.2d 653. The scheme charged in the indictment was one to defraud Edsel B. Ford. Count 1 relies upon the mailing on November 26, 1938, of a cashier’s check for $5,000 dated November 18, 1938, payable to Frank McKay and endorsed by him. This is obviously the proceeds of the alleged fraudulent scheme; it is equally obvious that it is not the check of the victim. It follows that any money obtained from the victim by means of any fraudulent scheme had been obtained and was a completed transaction when the cashier’s check was issued by the Detroit Bank on November 18, 1938, and when the mailing of the cashier’s check in question took place eight days later on November 26, 1938. At that time the victim had parted with his money without power to retract. In Count 2 the Government relies upon the mailing of a check issued by BassLuckoff, Inc., for $3,068 dated November 29, 1938, payable to the order of cash and endorsed by Frank McKay. This check is also obviously not the check of the victim, although representing the proceeds of the alleged scheme. When it was issued on November 29, 1938, the fraud upon Ford, if any existed, had already been completed. Bass-Luckoff, Inc., had already obtained the money from the victim before issuing its own check. The mailing of the BassLuckoff check on December 1, 1938, was not for the purpose of defrauding the victim. Even if the foregoing analysis of the situation, as derived from the allegations of the indictment and the exhibits made a" }, { "docid": "11960418", "title": "", "text": "that in each instance the mails were used only after the transaction had been completed and the money paid by the victims to the appellant, and that the mailing of the leases after they had been sold by the appellant to the so-called victims to the Commissioner of Public Lands at Santa Fe for recordation, and the return of the leases to the purchaser after recordation, was not in furtherance of the scheme within the intent and meaning of Section 215, 18 U.S.C.A. § 338. It is well established that the use of the mails after the scheme has been fully consummated and completed in all of its parts cannot supply the essential ingredient for an offense under Section 215, 18 U.S.C.A. § 338. Mitchell v. United States, 10 Cir., 118 F.2d 653; Stapp et al. v. United States, 5 Cir., 120 F.2d 898; McNear v. United States, 10 Cir., 60 F.2d 861; Armstrong v. United States, 10 Cir., 65 F.2d 853; Little v. United States, 10 Cir., 73 F.2d 861, 96 A.L.R. 889; Merrill v. United States, 9 Cir., 95 F.2d 669; Stewart v. United States, 8 Cir., 119 F. 89. But as this court observed in Mitchell v. United States, supra, an entirely different situation is presented when the indictment charges, as it does here, that the scheme so devised was a continuing scheme which included as an essential element thereof the approval and recordation of the assignments of the leases sold, and the return of the same to the purchaser; and that the use of the mails was contemplated and were used to accomplish this purpose. Corbett v. United States, 8 Cir., 89 F.2d 124; United States v. Kenofskey, 243 U.S. 440, 37 S.Ct. 438, 61 L.Ed. 836; Preeman v. United States, 7 Cir., 244 F. 1, certiorari denied 245 U.S. 654, 38 S.Ct. 12, 62 L.Ed. 533. Or where it is charged, as here, that the mails were used .for the purpose of lulling the victims into a false sense of security to avoid apprehension. Preeman v. United States, supra; Newingham v. United States, 4 F.2d" }, { "docid": "14410764", "title": "", "text": "facts in this case are clearly distinguishable from the case of Dyhre v. Hudspeth, supra, or Kann v. United States, supra, and the judgment of the lower Court in refusing to vacate judgment and sentence and dismiss the indictment was correct. The judgment of the Court below is affirmed. Tho Court said: “In these the mailing has ordinarily had a much closer relation to further fraudulent conduct than has the mere clearing of a cheek, although it is conceivable that this alone, in some settings, would be enough.” [323 U.S. 88, 65 S.Ct. 151]. HUTCHESON, Circuit Judge (concurring specially). I agree with the result the majority opinion announces, and, as abstractions, with most of what is said in it. We so decided in Stapp v. United States, 5 Cir., 120 F.2d 898, where the matter came up on direct appeal from a conviction on a record which showed that the mailing was after the purpose of the scheme to defraud had been completely accomplished. I cannot agree, though, with the implications of the majority opinion that Dyhre v. Hudspeth, 10 Cir., 106 F.2d 286, was correctly decided, and, therefore, is authority for the view that where, as here, a defendant has pleaded guilty to an indictment in a mail fraud case which “at least apparently attempts to charge a federal offense”, it is open to him to challenge the indictment on habeas corpus or on a motion to set the judgment aside. The exact contrary of this has been decided in Hastings v. Hudspeth, 10 Cir., 126 F.2d 194. In that case, the Tenth Circuit, from which Dyhre v. Hudspeth comes, on the authority of the many cited cases, which had sub silentio overruled the Dyhre case, settled it that “if there is a federal offense which the indictment apparently attempts to charge, and the court has jurisdiction * * * over the person of the accused, the sufficiency of the indictment is not open to challenge on habeas corpus” [126 F.2d 196]. I think it quite plain that the sufficiency of the indictment here is not open to inquiry" }, { "docid": "16954033", "title": "", "text": "in causing both the Government and defendant to make extensive and expensive trial preparations, to impanel a jury, to spend several weeks in hearing many witnesses, some no doubt from distant points, and then being compelled to direct a verdict for the defendant because the facts proven, and already conceded by the defendant to be the facts,, do not constitute the offense charged. See United States v. Adams Express Co., supra, 119 F. 240, 241. o Accordingly, as a practical matter it seems advisable for the Court to rule on the demurrer to the indictment without considering the bill of particulars, and in case that ruling should be erroneous, considering the language of the indictment instead of the actual facts, to also indicate its present views based on the facts as set out in the bill of particulars. It is well settled that under Section 215 of the Criminal Code it is not sufficient to merely allege and show that the defendant devised a scheme or artifice to defraud. The statute specifically provides that the United States mail must be used “for the purpose of executing such scheme or artifice or attempting so to do.” It is vital to the commission of the offense that the use of the mail relied upon by the Government be in furtherance of the alleged scheme. The demurrer to the indictment attacks its validity on the ground that the indictment shows on its face that the use of the mails relied upon by the Government in each count was not for the purpose of executing the scheme or artifice charged, but on the contrary occurred after the completion of the alleged scheme and at a time when the fraud, if any existed, had been fully perpetrated. Defendant relies upon the well settled rule that the mailing of a letter or check, even though connected with or relating to a scheme to defraud, if not for the purpose of executing the scheme, will not support an indictment under the statute. If the scheme charged was completed before the mail was used the offense denounced by" }, { "docid": "23161147", "title": "", "text": "Moreover, if the fees were not paid by clients it reasonably follows that Stewart, who worked the fraud to get the assessments reduced, could use his place and position to get them raised again. In one instance where a client thought a reduction from approximately $140,000.00 to $40,000.00 was too much and declined to accept Steiner’s services in the matter, the assessment was caused by the partner Stewart to be raised to in excess of $80,-00.00, an amount acceptable to the taxpayer. Lane Cotton Mills which dispensed with these most successful reduction serv ices after using them for several years found that upon dismissal of Steiner its assessments soared even higher than before. Appellant contends that the scheme to defraud the State and its taxpayers was consummated at the instant the illegal tax assessment reductions were entered on the books of the Tax Commission; and that the mails were used after the execution of the scheme and in connection with matters wholly outside the scheme to defraud. Cf. McNear v. United States, 10 Cir., 60 F.2d 861; Dyhre v. Hudspeth, 10 Cir., 106 F.2d 286; Spillers v. United States, 5 Cir., 47 F.2d 893; Stapp v. United States, 5 Cir., 120 F.2d 898. The case at bar is not controlled by thosev decisions, for here the scheme to defraud had not come to an end when the mails were used. Unless money came in, the scheme would not and, could not operate, for Stewart, the key-man with access to the tax rolls, Steiner, the soliciting lawyer, and Stein, the go-between, were all in the scheme for what they could get out of it. The collection of fees for “services rendered” was an integral part of the continuous and operating scheme to defraud, and the mails were used to accomplish their collection. When one of the schemers used the mails for collection of fees in furtherance of the fraudulent scheme, all defendants being partners in crimp, were responsible for the mailing. Tincher v. United States, 4 Cir., 11 F.2d 18; Hart v. United States, 5 Cir., 112 F.2d 128. Under Section" }, { "docid": "5702344", "title": "", "text": "acquitted Mitchell on four counts of mail fraud and reached no verdict on three remaining counts. We affirm the convictions. I Mitchell contends that the indictment was subject to dismissal because it failed to charge an offense. To charge a violation of 18 U.S.C. § 1341, the indictment was required to allege facts from which two elements could be found: (1) the formation of a scheme or artifice to defraud, and (2) use of the mails in furtherance of the scheme. United States v. Buckley, 689 F.2d 893, 897 (9th Cir.1982), cert. denied, 460 U.S. 1086, 103 S.Ct. 1778, 76 L.Ed.2d 349 (1983); United States v. Bohonus, 628 F.2d 1167, 1171 (9th Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3026, 65 L.Ed.2d 1122 (1980). Mitchell argues that the indictment did not allege that the mailings were made in furtherance of the scheme. Mitchell was convicted on six counts of mail fraud. Count 5 was based upon a notice sent by the planning commission to the owner of the apartment complex to advise him that the commission would rehear the conversion proposal. Counts 6 through 8 were based upon notice of the rehearing sent to tenants of the apartment complex. Counts 9 and 10 were based upon notices sent by the planning commission and the city council, respectively, advising the owner of the complex that the conversion project had been approved. Mitchell argues that each of these mailings was routine, intrinsically innocent, and required by law and that they therefore were not made in furtherance of the scheme to defraud. To violate section 1341, mailings need not be an essential part of the scheme, but they must be made or caused to be made for the purpose of executing the scheme. United States v. Maze, 414 U.S. 395, 400, 94 S.Ct. 645, 648, 38 L.Ed.2d 603 (1974); Bohonus, 628 F.2d at 1173. This requirement is satisfied if the completion of the scheme or the prevention of its detection is in some way dependent upon the mailings. See United States v. LaFerriere, 546 F.2d 182, 187 (5th Cir.1977). Each of the" }, { "docid": "8626951", "title": "", "text": "sufficiency as a basis for the mail fraud counts because it tended to prove the continuing scheme to defraud charged in the indictment. It was a form letter sent to investors giving a glowing report on the progress being made in the very promotion which is the subject matter of the indictment. In addition, it contains a solicitation of additional investments. This contention overlooks the fact that the offenses charged are the result of a single continuing scheme to defraud. The scheme becomes a crime when the mails are used in furtherance thereof. Harper v. United States, 8 Cir., 143 F.2d 795. Since it is the use of the mails in furtherance of the fraudulent scheme that is prohibited rather than fraud upon any recipient of material sent through the mails, the testimony of a victim is admissible to prove the scheme to defraud even if there has been no use of the mails in defrauding that party. United States v. Young, 232 U.S. 155, 34 S.Ct. 303, 58 L.Ed. 548; McNear v. United States, 10 Cir., 60 F.2d 861; Blue v. United States, 6 Cir., 138 F.2d 351. Frank next contends that the court erred in admitting the testimony of Witt, who testified that a dry hole was drilled in 1939, and the testimony of Nassaman, who testified...that a dry hole was drilled in 1946, although Frank had predicted in both instances, after testing with his magnetic logger, that oil would be found. One of the misrepresentations charged in the indictment related to the purported infallibility of the magnetic logger. This evidence was clearly admissible because of its bearing upon the question of whether Frank knowingly made false statements with respect to the reliability of his magnetic logger as an oil finding device. It is next argued that the court committed error in permitting the witness White, who qualified as a geologist, to express an opinion as to the oil production which might be obtained from the 160-acre tract. The short answer to this contention is that Rule 28 of the Federal Rules of Criminal Procedure, 18 U.S. C.A.," }, { "docid": "9487670", "title": "", "text": "a nullity and it is the province and duty of this court to grant the relief sought. The indictment charges that the petitioner and another devised a scheme to defraud, and “for the purpose and with the intent of executing the said scheme and artifice” they caused the mails of the United States to be used, and it affirmatively alleges the use of the mails and the specific manner in which the mails were used. It may well be that the proof adduced at the trial of the case was insufficient to show that the use of the mails was a part of the scheme to defraud, or that they did in fact use or cause the mails to be used in furtherance or for the purpose of executing the fraudulent scheme, but these were questions necessarily within the jurisdiction of the trial court, and his error in the determination of this question is exclusively within the jurisdiction of the appropriate appellate courts and does not exist here. The petitioner relies upon Stapp et al. v. United States, 5 Cir., 120 F.2d 898; McNear v. United States, 10 Cir., 60 F.2d 861; Armstrong v. United States, 10 Cir., 65 F.2d 853; Little v. United States, 10 Cir., 73 F.2d 861; Merrill v. United States, 9 Cir., 95 F.2d 669; see, also, Mitchell v. United States, 10 Cir., 118 F.2d 653. In each of these cases, the defect in the indictment or the proof in support thereof was challenged by appeal and not by habeas corpus, and are not controlling in the determination of the question presented here. We do not think that the allegations of the indictment affirmatively show that the fraudulent scheme was fully consummated when the money was paid over by the person to be defrauded, or that the offense described in the indictment was impossible of execution. The indictment does describe an offense under Section 338, Title 18 U.S.C.A., and is not vulnerable to attack here. Creech v. Hudspeth, 10 Cir., 112 F.2d 603. Cf. Dyhre v. Hudspeth, supra. The order denying the writ of habeas corpus" }, { "docid": "16954034", "title": "", "text": "United States mail must be used “for the purpose of executing such scheme or artifice or attempting so to do.” It is vital to the commission of the offense that the use of the mail relied upon by the Government be in furtherance of the alleged scheme. The demurrer to the indictment attacks its validity on the ground that the indictment shows on its face that the use of the mails relied upon by the Government in each count was not for the purpose of executing the scheme or artifice charged, but on the contrary occurred after the completion of the alleged scheme and at a time when the fraud, if any existed, had been fully perpetrated. Defendant relies upon the well settled rule that the mailing of a letter or check, even though connected with or relating to a scheme to defraud, if not for the purpose of executing the scheme, will not support an indictment under the statute. If the scheme charged was completed before the mail was used the offense denounced by Section 215 of the Criminal Code does not exist. Stapp et al. v. United States, 5 Cir., 120 F.2d 898; Spillers v. United States, 5 Cir., 47 F.2d 893; Dyhre v. Hudspeth, 10 Cir., 106 F.2d 286; McNear v. United States, 10 Cir., 60 F.2d 861; McLendon v. United States, 6 Cir., 2 F.2d 660; United States v. Dale, D.C., 230 F. 750; United States v. Leche, D.C., 34 F.Supp. 982, 986; United States v. Siebricht, 2 Cir., 59 F.2d 976; Mitchell v. United States, 10 Cir., 118 F.2d 653. The scheme charged in the indictment was one to defraud Edsel B. Ford. Count 1 relies upon the mailing on November 26, 1938, of a cashier’s check for $5,000 dated November 18, 1938, payable to Frank McKay and endorsed by him. This is obviously the proceeds of the alleged fraudulent scheme; it is equally obvious that it is not the check of the victim. It follows that any money obtained from the victim by means of any fraudulent scheme had been obtained and was a" }, { "docid": "22368862", "title": "", "text": "effectuate the original design. The important thing is that the scheme, or the inten tion to devise it, shall remain the same. The variety of means which may be employed in the execution thereof is limited only by the ingenuity of the schemer. The statute is violated if, having devised or intending to devise a scheme to defraud, the mails are used for the purpose of executing such scheme or attempting to do so. It is not necessary that when the artifice was devised the schemers shall have worked out all the details of its execution. The law does not define fraud; it needs no definition ; it is as old as falsehood and as versable as human ingenuity. As was said by this court in McLendon v. United States, 5 Cir., 14 F.2d 12, on page 14: “The language of section 215 of the Criminal Code does not indicate that the lawmakers intended to enable one who uses the mails in furtherance of a scheme to defraud to obtain immunity for so doing by making the commission of a plurality of crimes a part or feature of his scheme.” In Sasser v. United States, 5 Cir., 29 F. 2d 76, the indictment was in twenty counts. The scheme was set out in detail in the first count, and adopted by reference in all the other counts, the only material difference between the counts being that a different letter was set out in each, and alleged to have been mailed to some one of the banks intended to be defrauded. This court held that every part or element of the scheme as alleged in the indictment need not be proven, but that it was sufficient to prove enough to constitute an offense. In Gourdain v. United States, 3 Cir., 154 F. 453, it was held that various means used in committing the offense may be joined without duplicity. The theory upon which the indictment in the court below was drawn was that there was but one scheme, which was to obtain money by fraud in connection with the building contract." }, { "docid": "6823382", "title": "", "text": "trust but an active fraud, and such conduct is condemned by the mail fraud statute if the mail is used in furtherance of the execution of said scheme. (United States v. Groves, C.C.A., N.Y., 1941, 122 F.2d 87, cert. den. 314 U.S. 670, 62 S.Ct. 135, 86 L.Ed. 536; United States v. Buckner, C.C.A., N.Y., 108 F.2d 921, cert. den. 309 U.S. 669, 60 S.Ct. 613, 84 L.Ed. 1016.) The gist of the offense of the crime charged in this indictment is the use of the mails, and a scheme to defraud need not be set forth with such precision as if it were the gist of the offense. (Leche v. United States, 118 F.2d 246, cert. den. 314 U.S. 617, 62 S.Ct. 73, 86 L.Ed. 496, reh. den. 314 U.S. 712, 62 S.Ct. 295, 86 L.Ed. 567; United States v. Lowe, 7 Cir., 115 F.2d 596, cert. den. 311 U.S. 717, 61 S.Ct. 441, 85 L.Ed. 466.) While it is essential that criminal intent to defraud be proved at the time of the trial in order to sustain conviction, acts which may be innocent by themselves may, in combination, constitute a fraud. A scheme to obtain money unfairly by obtaining and then betraying the confidence of another is a scheme to defraud although no lies are told and it is within the prohibition of the mail fraud statute if the mails are used in connection therewith. (Shushan v. United States, supra; United States v. McKay, D.C., Mich.1942, 45 F.Supp. 1001, 1007.) Defendants next contend, in attacking the legal sufficiency of the indictment, that said indictment fails to allege that the defendants knew the falsity of the alleged misrepresentations. It is sufficient to state that the allegation of scienter is not required. The scheme described in the instant indictment does not involve primarily a scheme to obtain money by false and fraudulent pretenses, representations and promises. It is a scheme and artifice to defraud, and the scheme may exist even though no misrepresentations, in fact, were made. (Kreuter v. United States, 5 Cir., 218 F.2d 532, cert. den. 349 U.S." }, { "docid": "9487671", "title": "", "text": "v. United States, 5 Cir., 120 F.2d 898; McNear v. United States, 10 Cir., 60 F.2d 861; Armstrong v. United States, 10 Cir., 65 F.2d 853; Little v. United States, 10 Cir., 73 F.2d 861; Merrill v. United States, 9 Cir., 95 F.2d 669; see, also, Mitchell v. United States, 10 Cir., 118 F.2d 653. In each of these cases, the defect in the indictment or the proof in support thereof was challenged by appeal and not by habeas corpus, and are not controlling in the determination of the question presented here. We do not think that the allegations of the indictment affirmatively show that the fraudulent scheme was fully consummated when the money was paid over by the person to be defrauded, or that the offense described in the indictment was impossible of execution. The indictment does describe an offense under Section 338, Title 18 U.S.C.A., and is not vulnerable to attack here. Creech v. Hudspeth, 10 Cir., 112 F.2d 603. Cf. Dyhre v. Hudspeth, supra. The order denying the writ of habeas corpus is affirmed. Section 215 of the Criminal Code, Title 18, Section 338, U.S.C.A.: “Whoever, having devised or intending to devise any scheme * * * to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises * * * shall, for the purpose of executing such scheme or artifice or attempting so to do, place or cause to be placed * * * in any post office * * * or shall knowingly causo to be delivered by mail * * * any such letter * * * shall be fined not more than $1,000, or imprisoned not more than five years, or both.”" }, { "docid": "3210758", "title": "", "text": "PHILLIPS, Circuit Judge. Rude and Heller were tried, convicted, and sentenced for violations of section 215 of the Criminal Code, 18 USCA, § 338. The indictment contained four counts. The first count set out the general scheme, and the mailing of a postal card in furtherance of such scheme. Each of the other counts alleged by reference to count one the same general scheme, and the mailing of another postal card in furtherance thereof. The defendants challenged the sufficiency of the indictment by demurrers and motions in arrest of judgment, and assign as error adverse rulings thereon. While the formation of a scheme or artifice to defraud is 'an essential element of the offense under section 215, supra, the gist of the offense is the use of the mail for the purpose of executing or attempting to execute such scheme, and such scheme need not be pleaded with all the certainty as to time, place, and circumstances required in charging the use of the mails. Havener v. United States (C. C. A. 10) 49 F.(2d) 196, 198; Brady v. United States (C. C. A. 8) 24 F.(2d) 397; Cochran v. United States (C. C. A. 8) 41 F.(2d) 193; Mathews v. United States (C. C. A. 8) 15 F.(2d) 139; Chew v. United States (C. C. A. 8) 9 F.(2d) 348; Gould v. United States (C. C. A. 8) 209 F. 730; Cowl v. United States (C. C. A. 8) 35 F.(2d) 794. But the scheme or artifice to defraud must be set forth with sufficient particularity to apprise the accused of the nature of the accusation and to enable him to prepare his defense. United States v. Hess, 124 U. S. 483, 486, 8 S. Ct. 571, 31 L. Ed. 516. The substance of the charge with respect to the scheme is that defendants would mail to persons to be defrauded, to induce them to come to defendants’ store, postal cards with samples of fine woolen cloth attached, falsely representing that suits of such material could be purchased for $10, and that unclaimed suits of the value of $25" }, { "docid": "5977361", "title": "", "text": "Act of March 2,1889, 25 Stat. 873). But this section was thereafter amended and became § 215 of the Criminal Code (Act of March 4, 1909, c. 321, 35 Stat. 1088, 1130, § 338, Title 18 U.S.C.A.). Under the former statute, the elements of the offense were that the persons charged in the indictment must have devised a scheme to defraud and intended to effect it by the use of the mails, as well as have used the mails to carry it into effect. The difference between the two statutes is that under the former, the scheme must have contemplated the use of the mails; and under the latter, it is only necessary that a party devised a scheme to defraud and, afterward, placed or caused to be placed a letter in the mails for the purpose of executing the same. Morris v. United States, 8 Cir., 7 F.2d 785. Under § 215 of the Criminal Code, it is sufficient that, having devised a scheme to defraud, the mails are actually used in effecting it; and a purpose to use the mails is no longer an essential element of the scheme devised, as it was under the former statute. United States v. Young, 232 U.S. 155, 34 S.Ct. 303, 58 L.Ed. 548; Trent et al. v. United States, 8 Cir., 228 F. 648; Farmer v. United States, 2 Cir., 223 F. 903, certiorari denied 238 U.S. 638, 35 S.Ct. 940, 59 L.Ed. 1500; Preeman v. United States, 7 Cir., 244 F. 1; Depew et al. v. United States, 3 Cir., 255 F. 539; Smith v. United States, 8 Cir., 267 F. 665; Bogy v. United States, 6 Cir., 96 F.2d 734; Guardalibini v. United States, 5 Cir., 128 F.2d 984. It is immaterial whether the persons devising the scheme had intended to use the mails or whether anyone was actually defrauded. The mailing of the letter may be by an innocent agent, unconnected with the schemers. Stapp et al. v. United States, 5 Cir., 120 F.2d 898. Where a party participating with others in a scheme to defraud presents a" }, { "docid": "2592170", "title": "", "text": "the mailing did not take place until after the defendant had induced the parties named to accept his fraudulent check for merchandise. He had thus accomplished all he set out to do in falsely representing that he had money on deposit in the banks. McNear v. United States, 10 Cir., 60 F.2d 861; Armstrong v. United States, 10 Cir., 65 F.2d 853; Little v. United States, 10 Cir., 73 F.2d 861; Merrill v. United States, 9 Cir., 95 F.2d 669. In Stewart v. United States, 8 Cir., 119 F. 89, 95, Circuit Judge Thayer said this on the point: “Another observation to be made concerning the indictment is this: That while the fraudulent scheme, as described, was one whereby the mails were to be employed to induce persons to come to Webb City, to be afterwards defrauded, yet the letter which was deposited in the mails by Gillett, on which the third count is founded, does not seem to have been written to accomplish any such purpose, and for that reason it can hardly be said to have been deposited in the mail in execution of such a scheme as the indictment describes. It was written, as it seems, long after Davis had been induced to go to Webb City and after he had wagered his money and sustained all the loss that he could possibly sustain by reason of the alleged fraudulent scheme.” Moreover, it can not be reasonably contended that there was one fraudulent scheme that extended to all the persons who were induced to cash defendant’s checks. Each person who did so was separately defrauded by representations made to him alone, ¿tie pleader so charged them, and the Grand Jury found that each count was a separate offense. The defrauding of one had no connection with the defrauding of another. The mailing of a check in each count seems self-contradictory. Each count charges that the defendant caused to be placed in the post office of the United States at Lake Providence, Louisiana, to be sent and delivered by said post office establishment to the said Bent County" }, { "docid": "23161148", "title": "", "text": "F.2d 861; Dyhre v. Hudspeth, 10 Cir., 106 F.2d 286; Spillers v. United States, 5 Cir., 47 F.2d 893; Stapp v. United States, 5 Cir., 120 F.2d 898. The case at bar is not controlled by thosev decisions, for here the scheme to defraud had not come to an end when the mails were used. Unless money came in, the scheme would not and, could not operate, for Stewart, the key-man with access to the tax rolls, Steiner, the soliciting lawyer, and Stein, the go-between, were all in the scheme for what they could get out of it. The collection of fees for “services rendered” was an integral part of the continuous and operating scheme to defraud, and the mails were used to accomplish their collection. When one of the schemers used the mails for collection of fees in furtherance of the fraudulent scheme, all defendants being partners in crimp, were responsible for the mailing. Tincher v. United States, 4 Cir., 11 F.2d 18; Hart v. United States, 5 Cir., 112 F.2d 128. Under Section 215 of the Criminal Code, the mail fraud statute, it is sufficient to charge and prove that there was a scheme to defraud; that the mails were used or caused to be used in furtherance of the scheme; and that the scheme was one which “reasonably contemplated the use of the mails”. A careful review of the evidence in this rather lengthy record discloses that the government proved the essential elements of the offenses charged,'and that there was no fatal variance between the charges and the proof. Spivey v. United States, 5 Cir., 109 F.2d 181; Corbett v. United States, 8 Cir., 89 F.2d 124; Guardalibini v. United States, 5 Cir., 128 F.2d 984; United States v. Lowe, 7 Cir., 115 F.2d 596; Hart v. United States, supra. Steiner attacks the sufficiency of the evidence to show the mailings alleged in the first two counts of the indictment, and further alleges that for purposes of venue there was no proof that the letter in the second count was mailed in New Orleans. The statement forming" }, { "docid": "11960417", "title": "", "text": "and the public generally is not open to question or doubt. Neither can it be said that the mails were not used or caused to be used by the appellant in connection with or corollary to the scheme. The only question is whether the use of the mails as shown by the proof was an ingredient of the scheme, that is, whether the use of the mails is so closely associated with the transactions as to become a part of the scheme as devised. The appellant contends that each transaction as related to each count of the indictment was separate and distinct, and not related to any other; that the proof does not support a continuing scheme to defraud as alleged in the indictment, consequently the use of the mails as proven is no part of the scheme, was not essential to the consummation of it, and therefore does not constitute an offense under the mail fraud statute. Particularly with reference to counts 1, 2, 3, 4, 5, 6, and 8, it is earnestly contended that in each instance the mails were used only after the transaction had been completed and the money paid by the victims to the appellant, and that the mailing of the leases after they had been sold by the appellant to the so-called victims to the Commissioner of Public Lands at Santa Fe for recordation, and the return of the leases to the purchaser after recordation, was not in furtherance of the scheme within the intent and meaning of Section 215, 18 U.S.C.A. § 338. It is well established that the use of the mails after the scheme has been fully consummated and completed in all of its parts cannot supply the essential ingredient for an offense under Section 215, 18 U.S.C.A. § 338. Mitchell v. United States, 10 Cir., 118 F.2d 653; Stapp et al. v. United States, 5 Cir., 120 F.2d 898; McNear v. United States, 10 Cir., 60 F.2d 861; Armstrong v. United States, 10 Cir., 65 F.2d 853; Little v. United States, 10 Cir., 73 F.2d 861, 96 A.L.R. 889; Merrill" }, { "docid": "5702345", "title": "", "text": "the commission would rehear the conversion proposal. Counts 6 through 8 were based upon notice of the rehearing sent to tenants of the apartment complex. Counts 9 and 10 were based upon notices sent by the planning commission and the city council, respectively, advising the owner of the complex that the conversion project had been approved. Mitchell argues that each of these mailings was routine, intrinsically innocent, and required by law and that they therefore were not made in furtherance of the scheme to defraud. To violate section 1341, mailings need not be an essential part of the scheme, but they must be made or caused to be made for the purpose of executing the scheme. United States v. Maze, 414 U.S. 395, 400, 94 S.Ct. 645, 648, 38 L.Ed.2d 603 (1974); Bohonus, 628 F.2d at 1173. This requirement is satisfied if the completion of the scheme or the prevention of its detection is in some way dependent upon the mailings. See United States v. LaFerriere, 546 F.2d 182, 187 (5th Cir.1977). Each of the mailings identified in the indictment played an integral part in the completion of Mitchell’s scheme. The mailing in Count 5, informing the complex owner of the granting of the rehearing, was an important step in eventually securing the commission’s approval. The mailings to the tenants in Counts 6 through 8 were required by the planning commission as a condition to holding a rehearing on the conversion application. The mailings to the complex owner in Counts 9 and 10 were required to consummate the scheme. As in United States v. Miller, 676 F.2d 359, 362 (9th Cir.), cert. denied, 459 U.S. 856, 103 S.Ct. 126, 74 L.Ed.2d 109 (1982), “[o]nly then was the transaction complete.” Because city ordinances required that the notices to which Counts 5, 9, and 10 refer be mailed, Mitchell knew the mails would be used in the course of securing the city’s approval of the project. See United States v. Brutzman, 731 F.2d 1449, 1454 (9th Cir. 1984). Each notice was thus a necessary step in achieving the goal of approval of" }, { "docid": "6823383", "title": "", "text": "in order to sustain conviction, acts which may be innocent by themselves may, in combination, constitute a fraud. A scheme to obtain money unfairly by obtaining and then betraying the confidence of another is a scheme to defraud although no lies are told and it is within the prohibition of the mail fraud statute if the mails are used in connection therewith. (Shushan v. United States, supra; United States v. McKay, D.C., Mich.1942, 45 F.Supp. 1001, 1007.) Defendants next contend, in attacking the legal sufficiency of the indictment, that said indictment fails to allege that the defendants knew the falsity of the alleged misrepresentations. It is sufficient to state that the allegation of scienter is not required. The scheme described in the instant indictment does not involve primarily a scheme to obtain money by false and fraudulent pretenses, representations and promises. It is a scheme and artifice to defraud, and the scheme may exist even though no misrepresentations, in fact, were made. (Kreuter v. United States, 5 Cir., 218 F.2d 532, cert. den. 349 U.S. 932, 75 S.Ct. 777, 99 L.Ed. 1262.) Even though the indictment contains charges of misrepresentations, since the indictment sufficiently charges the defendants with intentionally devising a scheme, the failure to allege scienter on behalf of the defendants with regard to the alleged misrepresentations does not vitiate the indictment. With regard to the contention that the facts alleged in the indictment failed to show that the alleged mailings were, in fact, in furtherance of the execution of the scheme described in the indictment, it is sufficient to state that whether the mailings charged are innocent and not in furtherance of the scheme is a question which must be determined at the trial and is not a point to be considered on a motion to dismiss or motion to quash the indictment. (United States v. Feinberg, 50 F.Supp. 976, 977 (D.C.N.Y.1943), affirmed, 140 F.2d 592, 154 A.L.R. 272, (2 Cir.,) cert. den. 322 U.S. 726, 64 S.Ct. 943, 88 L.Ed. 1562 (1943); Meunch v. U. S., 96 F.2d 332, 336 (8 Cir. 1938).) This indictment, which alleges" } ]

[ { "docid": "13463533", "title": "", "text": "42 U.S.C. § 4601 et seq., but was refused such aid. It then sought a judicial declaration that it was entitled to benefits under the Act but the court dismissed its complaint and Parlane appeals. The statute extends assistance to persons displaced by the acquisition of real property “for a program or project undertaken by a Federal agency,” 42 U.S.C. § 4622(a). HEW’s regulations refer to “direct projects of the Department,” 45 C.F.R. § 15.5(a), and deny aid to persons displaced by federally assisted projects of private entities, 45 C.F.R. § 15.6. We find no compelling indica tions that HEW’s contemporaneous construction of the statute is wrong. New York Dept. of Social Services v. Dublino, 413 U.S. 405, 421, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973). The committee report states that the statute is aimed at alleviating the hardships of displacement for “public works projects” and “public improvement programs,” H.R.Rep. No. 1656, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.Code Cong. & Admin. News, pp. 5850, 5851—52; and none of the examples furnished therein (highways, reservoirs, public buildings, facilities or services, urban renewal projects, hospitals), approximate the arrangement here, which Tufts initiated and administers. Cf. Wahba v. New York University, 492 F.2d 96, 100 & n. 3 (2d Cir. 1974). Parlane contends that the phrase “federal financial assistance” appearing in the statutory definition of displaced persons, § 4601(6), and statement of policy, § 4621, demonstrates an intent to include all such projects. But we are satisfied, especially in light of the committee report, that this phrase was intended to cover only such assistance to State agencies. See H.R.Rep. No. 1656, supra at 5853, 5865. Finally, Representative Ryan criticized the Act shortly before it was enacted because it “does not cover displacement arising from construction by private institutions — such as schools and hospitals — even though they, too, may be receiving federal financial assistance,” 116 Cong.Rec. 41254-55 (1970); his own bill, H.R. 609, 91st Cong., 2d Sess. (1970), which would have covered such displacement, was allowed to die in committee. Although statements of opponents of a bill may not" } ]

[ { "docid": "9877940", "title": "", "text": "and sanitary dwellings for lower income families. To fulfill the mandate of this Act, Congress authorized the Secretary of the Department of Housing and Urban Development to provide financial assistance to owners or prospective owners who agree to construct or substantially rehabilitate housing for lower income families. Relying on the recommendations of HUD, Congress designed the Section 8 program to provide a profit incentive for private developers to participate in the construction and management of lower income housing by using monthly housing assistance payments. S.Rep.No.93-693, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Admin.News, pp. 4273, 4275. One means, and the one used here, by which HUD furnishes rental subsidies directly to housing owners on behalf of the tenants is contracting with a State Housing Finance Agency (HFA) for the HFA to administer the program throughout its jurisdiction. The intermediary HFA then contracts with private owners. In the district court plaintiff sought declaratory relief establishing her right to relocation assistance and services under the Uniform Relocation Act. She also asked for injunctive relief enjoining defendants from following those provisions of the Code of Federal Regulations which precluded the plaintiff from receiving benefits under URA. Contending that the purposes of the Uniform Relocation Act were contravened, plaintiff specifically objected to the regulations set forth in 24 C.F.R. § 880.113(b) and 24 C.F.R. § 883.210(b) which require that relocation and assistance payments be provided if the owner of a new project is a Public Housing Authority (PHA). The regulations, however, contain no comparable requirement in the case of either a privately owned project or a private owner/PHA project. Relying on statutory construction, legislative history, and case law, the district court, found that persons displaced by real property acquisition undertaken by private parties for projects which receive federal assistance are not entitled to the benefits established in the Uniform Relocation Act. We affirm. On appeal the issue presented is whether a person dispossessed from real property by a private acquisition, which leads to the construction of a Section 8 housing project that upon completion is aided by federal financial assistance through" }, { "docid": "3315359", "title": "", "text": "they result from acquisition of the property because they have been caused by the rehabilitation of property by its present owner. The rehabilitation efforts of the private property owner, Richard Sheldon, exemplify this situation, where any displacement is unrelated to an acquisition of property for a governmental program or project. The United States Supreme Court, in Alexander v. United States Department of Housing and Urban Development, U.S. -, 99 S.Ct. 1572, 60 L.Ed.2d 28 (1979), recently explained that Congress intentionally restricted the definition of a “displaced person” to the context of a property acquisition for a program or project. See also Blount v. Harris, 593 F.2d 336 (8th Cir. 1979). . Although project funds were backed by federal mortgage insurance from HUD, the URA specifically exempts this from its definition of “federal financial assistance.” 42 U.S.C. § 4601(4). . One hundred forty-six apartments have been completely restored and forty-six condominiums remodeled. McMILLIAN, Circuit Judge, concurring. While I concur in the result for the legal reasons discussed by the majority, I am saddened by the expediency and callousness exhibited by this rehabilitation scheme toward the original residents of the neighborhood. The federal, state and local governments’ attempts to garnish the assistance of private developers in rebuilding the inner cities is laudable. The dislocation of lower income families as exhibited in this case reveals, however, the shortsightedness in most urban redevelopment planning which, rather than alleviating the inner city ghetto, will merely cause it to geographically shift. As the majority discussed, the legislative history of the Uniform Relocation Assistance and Real Property Acquisition Act of 1970 (URA), 42 U.S.C. §§ 4601 et seq., indicates that Congress did not intend this Act to apply to relocations effectuated by private developers, even though these developers may be assisted financially by the federal government. In light of the recent trend in government programs of enticing private enterprise to undertake endeavors once assumed solely by the governmental entities, I question whether the original scope of the URA is still appropriate." }, { "docid": "3315342", "title": "", "text": "the acquisition of such real property, in whole or in part, or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency, or with Federal financial assistance; * * *. [Emphasis added.] The developer does not claim to have provided relocation assistance as required by the URA. It argues that the URA does not apply to its redevelopment activities in the Pershing-Waterman area because appellants are not “displaced persons” because it acquired real property solely in its capacity as a private developer and without federal financial assistance. It is the established law in this circuit that the URA definition of “program or project undertaken by a Federal agency, or with Federal financial assistance” does not encompass the situation when a private party undertakes a federally assisted program or project and acquires property. Moorer v. Department of Housing and Urban Development, 561 F.2d 175 (8th Cir. 1977), cert. denied, 436 U.S. 919, 98 S.Ct. 2266, 56 L.Ed.2d 760 (1978); see also Alexander v. United States Department of Housing and Urban Development, - U.S. -, - n.9, 99 S.Ct. 1572 n.9, 60 L.Ed.2d 28 n.9 (1979); Conway v. Harris, 586 F.2d 1137 (7th Cir. 1978); Parlane Sportswear Co. v. Weinberger, 513 F.2d 835 (1st Cir.), cert. denied, 423 U.S. 925, 96 S.Ct. 269, 46 L.Ed.2d 252 (1975). Thus the URA would not apply to the Pershing-Water man redevelopment project if it were found that the project had been undertaken by a private party as opposed to a federal, state, or local governmental agency, or in the alternative, if it were found that the project had not received federal financial assistance. Resolution of both these issues depends upon whether the appellants’ characterization of the project as a joint undertaking in the nature of a partnership between the private developer and the City of St. Louis accurately portrays the organization of the project. We find that the evidence is clearly inadequate to establish that the activities of the City of St. Louis and the private developer are sufficiently intertwined" }, { "docid": "3315358", "title": "", "text": "to support the project, but increased the requested amount to $503,000, stating: The City of St. Louis will continue to fund public improvements in support of the Pershing Land Corporation under the Missouri Urban Redevelopment Corporations Law (Chapter 353). The approved redevelopment plan requires extensive reconstruction and modification of Pershing, Waterman, Clara and Belt. Improvements to be administered by the Land Clearance Authority will include strict resurfacing, curb and sidewalk and cul-de-sac construction. The application also requested funding for code enforcement and demolition services that may have benefited the redevelopment project. . As noted in footnote 4, the deteriorated condition of the housing caused the bulk of the residential displacements that have occurred in the Pershing-Waterman area. This displacement took place before 1976, when Pantheon commenced its redevelopment program. The URA would not apply to these displacements because they did not directly result from an actual or proposed acquisition of property for a governmental program or project. Also, some of the displacements directly at issue in this suit likewise fail to meet the requirement that they result from acquisition of the property because they have been caused by the rehabilitation of property by its present owner. The rehabilitation efforts of the private property owner, Richard Sheldon, exemplify this situation, where any displacement is unrelated to an acquisition of property for a governmental program or project. The United States Supreme Court, in Alexander v. United States Department of Housing and Urban Development, U.S. -, 99 S.Ct. 1572, 60 L.Ed.2d 28 (1979), recently explained that Congress intentionally restricted the definition of a “displaced person” to the context of a property acquisition for a program or project. See also Blount v. Harris, 593 F.2d 336 (8th Cir. 1979). . Although project funds were backed by federal mortgage insurance from HUD, the URA specifically exempts this from its definition of “federal financial assistance.” 42 U.S.C. § 4601(4). . One hundred forty-six apartments have been completely restored and forty-six condominiums remodeled. McMILLIAN, Circuit Judge, concurring. While I concur in the result for the legal reasons discussed by the majority, I am saddened by the expediency" }, { "docid": "3315341", "title": "", "text": "of questions going to the merits in the application of three federal statutes. We address them seriatim. IV The District Court held that it was unlikely that the appellants could prove that they were entitled to federal relocation benefits under the URA. It found that the developers' redevelopment corporations are private entities under Missouri law, and that there was no evidence of federal aid within the meaning of the URA. Section 4625(a) of the URA provides in relevant part: (a) Whenever the acquisition of real property for a program or project undertaken by a Federal agency in any State will result in the displacement of any person on or after January 2, 1971, the head of such agency shall provide a'relocation assistance advisory program for displaced persons which shall offer the services described in subsection (c) of this section. Section 4601(6) of the URA defines the term “displaced person” as: any person who, on or after January 2, 1971, moves from real property, or moves his personal property from real property, as a result of the acquisition of such real property, in whole or in part, or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency, or with Federal financial assistance; * * *. [Emphasis added.] The developer does not claim to have provided relocation assistance as required by the URA. It argues that the URA does not apply to its redevelopment activities in the Pershing-Waterman area because appellants are not “displaced persons” because it acquired real property solely in its capacity as a private developer and without federal financial assistance. It is the established law in this circuit that the URA definition of “program or project undertaken by a Federal agency, or with Federal financial assistance” does not encompass the situation when a private party undertakes a federally assisted program or project and acquires property. Moorer v. Department of Housing and Urban Development, 561 F.2d 175 (8th Cir. 1977), cert. denied, 436 U.S. 919, 98 S.Ct. 2266, 56 L.Ed.2d 760 (1978); see also" }, { "docid": "933371", "title": "", "text": "were to receive interest subsidy payments and FHA insured mortgage financing authorized by Section 236. In addition, each limited partnership entered into an agreement with HUD for rental assistance to be provided for a certain percentage of the units involved. After approval of its application and sponsorship, ADC negotiated the purchase of the property for the six projects and notified the residents that their tenancies would be terminated. All the buildings were located outside areas designated by HUD as Model Cities, Urban Renewal or Neighborhood Development areas of Kansas City. The relocation of all individuals displaced was accomplished by means of a private relocation agency and not according to the procedures set forth in the URA. URA benefits were not provided because HUD interpreted the URA to exclude from its terms moves resulting from private acquisition of property unless the displacee resided in areas designated for Model Cities, Urban Renewal or Neighborhood Development Programs. Pursuant to the agreement ADC had with HUD, it tendered to a private, non-profit relocation agency a maximum payment of $300 for actual moving expenses incurred by the displaced person. The relocation agency ultimately paid a maximum of $200 to qualified occupants and retained the remaining $100 per unit for administrative costs. None of the persons displaced received benefits, assistance or services provided by the URA. The parties also stipulated that congressional appropriations have neither been sought nor received for Project Rehab activities, and no legislation has been enacted. The rehabilitation on all the projects was accomplished with private mortgage money on F.H.A. guaranteed loans from private institutions. I. The real property from which the class was dispossessed had been acquired by a private party who received federal financial assistance under Section 236 of the National Housing Act, in the form of interest and rental subsidy payments and F.H.A. mortgage insurance. Plaintiffs-appellees claim they were entitled to URA benefits, arguing that they were forced to move as a result of an acquisition of property by Project Rehab, which they contend is a program or project of a federal agency. They further contend that the fact that" }, { "docid": "9877942", "title": "", "text": "rent subsidy payments, is a “displaced person” under 42 U.S.C. § 4601(6) entitled to Uniform Relocation Act benefits. I. In 1971, Congress enacted the Uniform Relocation Act and declared: The purpose of this subchapter is to establish a uniform policy for the fair and equitable treatment of persons displaced as a result of Federal and federally assisted programs in order that such persons shall not suffer disproportionate injuries as a result of programs designed for the benefit of the public as a whole. 46 U.S.C. § 4621. In following that far-reaching policy statement, plaintiff urges that we afford her benefits as a “displaced person” who in 42 U.S.C. § 4601(6) is defined as “any person who moves from real property . . . as a result of the acquisition of such real property . . . or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency, or with Federal financial assistance . . . .” Under this section plaintiff claims that she was forced to move from her apartment as a result of the acquisition of real property for a program or project undertaken either by a federal agency or with federal financial assistance. We disagree with the plaintiff as we cannot disregard the plain meaning of the Act’s operational sections that govern the scope of eligibility. The Eighth Circuit in Moorer v. Department of Housing and Urban Development, 561 F.2d 175 (8th Cir. 1977), cert, denied, 436 U.S. 919, 98 S.Ct. 2266, 56 L.Ed.2d 760 (1978), considered the same issue of statutory construction that we face here. Discussing the operational sections of the Act in regard to a Section 236 housing project of the National Housing Act, the Moorer court stated: The statute mandates that benefits shall be extended to persons displaced by real property acquisition when the real property is acquired “for a program or project undertaken by a Federal agency” (§ 4622(a)) or “[w]henever real property is acquired by a State agency . . . .” (§§ 4627, 4628). Under §" }, { "docid": "3315343", "title": "", "text": "Alexander v. United States Department of Housing and Urban Development, - U.S. -, - n.9, 99 S.Ct. 1572 n.9, 60 L.Ed.2d 28 n.9 (1979); Conway v. Harris, 586 F.2d 1137 (7th Cir. 1978); Parlane Sportswear Co. v. Weinberger, 513 F.2d 835 (1st Cir.), cert. denied, 423 U.S. 925, 96 S.Ct. 269, 46 L.Ed.2d 252 (1975). Thus the URA would not apply to the Pershing-Water man redevelopment project if it were found that the project had been undertaken by a private party as opposed to a federal, state, or local governmental agency, or in the alternative, if it were found that the project had not received federal financial assistance. Resolution of both these issues depends upon whether the appellants’ characterization of the project as a joint undertaking in the nature of a partnership between the private developer and the City of St. Louis accurately portrays the organization of the project. We find that the evidence is clearly inadequate to establish that the activities of the City of St. Louis and the private developer are sufficiently intertwined to characterize them as one project undertaken by a state instrumentality. The primary sources of the developer’s relationship with the City of St. Louis are Mo.Rev.Stat. Ch. 353 and City of St. Louis Ordinance 57217. These give the developer special privileges such as the power of eminent domain and tax abatements, and the City of St. Louis has pledged certain assistance to the developer’s project. This assistance has taken various forms. The City has demolished nine vacant buildings, has provided various street improvements, and has sold land to the developer at extremely low cost by virtue of tax foreclosure sales. At the same time, the developer is a privately-held corporation. It was organized and is controlled by private interests, and has arranged to finance its project from wholly private sources. On this evidence, we cannot say that the assistance provided by the city because of its desire to encourage and promote private redevelopment of blighted areas is sufficient to deprive the developer’s project of its status as a private project; a contrary holding is clearly" }, { "docid": "9877952", "title": "", "text": "the houser of last resort, id. § 4626. . 42 U.S.C. § 4601(6) reads in full: The term “displaced person” means any person who, on or after January 2, 1971, moves from real property, or moves his personal property from real property, as a result of the acquisition of such real property, in whole or in part, or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency, or with Federal financial assistance; and solely for the purposes of sections 4622(a) and (b) and 4625 of this title, as a result of the acquisition of or as the result of the written order of the acquiring agency to vacate other real property, on which such person conducts a business or farm operation, for such program or project. . Plaintiff argues that Moorer’s eminent domain eligibility test is disputed by our recent decision in Alexander v. U. S. Department of Housing and Urban Development, 555 F.2d 166 (7th Cir. 1977), cert, granted, — ■ U.S.----, 98 S.Ct. 3087, 57 L.Ed.2d 1132 (1978). In that case, however, we decided that URA benefits were inapplicable to the closing of a failed public housing project and we noted: Several cases have discussed the eligibility aspects of URA. . Further, a person displaced by a project undertaken by a private institution receiving federal financial assistance for that project was found ineligible to receive relocation benefits. Parlane Sportswear Co. v. Weinberger . 555 F.2d at 168 69." }, { "docid": "933378", "title": "", "text": "forced to move from their residences as a result of the acquisition of real property by defendant American Development for rehabilitation under HUD’s Project Rehab. Project Rehab was a “program or project undertaken by a Federal agency.” It could also be considered as a program or project undertaken with Federal financial assistance. Moorer v. Department of Housing & Urban Dev., 417 F.Supp. at 1269 (footnotes omitted). Project Rehab, even if considered to be a “program or project undertaken by a Federal agency”, neither acquired the real property nor entered a written order displacing the tenants. Project Rehab received no separate funding, but rather utilized existing federal mortgage insurance and subsidy programs. Id. at 1264. It should also be noted that mortgage insurance is expressly excluded in the definition of “Federal financial assistance” in § 4601(4), which provides: (4) The term “Federal financial assistance” means a grant, loan, or contribution provided by the United States, except any Federal guarantee or insurance III. We are aware that “[rjeliance on legislative history in divining the intent of Congress is ... a step to be taken cautiously.” Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 26, 97 S.Ct. 926, 941, 51 L.Ed.2d 124 (1977), but in this case it is appropriate to examine the legislative history because it has been argued by the parties, and because the district court extensively drew on legislative history in reaching its conclusion. The district court rejected the argument advanced by HUD that the legislative history evinced an intent by Congress to withhold benefits under URA to persons displaced by private entities that received federal financial assistance. In support of its conclusion, the district court quoted the House Report at 5853: It is immaterial whether the real property is acquired before or after the effective date of the bill, or by Federal or State agency; or whether Federal funds contribute to the cost of the real property. The controlling point is that the real property must be acquired for a Federal or Federal financially assisted program or project. The House Report at 5850 states that the URA was designed" }, { "docid": "12253332", "title": "", "text": "the agency abandoned the demolition plan and arranged to transfer ownership of the housing complex to the District of Columbia government, with HUD continuing to provide substantial rent subsidies. 187 U. S. App. D. C., at 160 n. 17, 571 F. 2d, at 594 n. 17. After we granted certiorari in these cases, Congress enacted the Housing and Community Development Amendments of 1978, Pub. L. 95-557, 92 Stat. 2080. That legislation directs HUD to re-examine its property management and disposition program, see § 203, 92 Stat. 2088, 12 U. S. C. § 1701z-11 (1976 ed., Supp. II); §902, 92 Stat. 2125, and to ensure that tenants displaced from property owned by HUD will receive any relocation assistance available under other statutory provisions, § 203 (d). However, these provisions do not affect the Relocation Act’s definition of a “displaced person.” See H. R. Conf. Rep. No. 95-1792, pp. 67-71, 99-100 (1978). In its entirety, this phrase encompasses any “program or project undertaken by a Federal agenc}*-, or with Federal financial assistance.” § 101 (6), 42 U. S. C. § 4601 (6). Lower federal courts have interpreted the latter part of this phrase to include only federally assisted “programs or projects” undertaken by agencies of state and local governments, as opposed to private parties. See Moorer v. Dept. of HUD, 561 F. 2d 175 (CA8 1977), cert. denied, 436 U. S. 919 (1978); Dawson v. U. S. Dept. of HUD, 428 F. Supp. 328 (ND Ga. 1976); Parlane Sportswear Co. v. Weinberger, 381 F. Supp. 410 (Mass. 1974), aff’d, 513 F. 2d 835, 837 (CA1), cert. denied, 423 U. S. 925 (1975). Although the present cases do require us to consider what types of “programs or projects” Congress intended to cover, infra, at 63-67, we need not determine whether § 101 (6) applies when private parties undertake such a program and acquire property, since the tenants here have claimed that the program of a federal agency caused their displacement. Similarly, these cases do not require us to construe the provisions applicable when a state or local agency acquires property for use in" }, { "docid": "6913090", "title": "", "text": "because the federal government had not executed a contract for a loan or grant—an activity held to be determinative of the federal nature of the project. Feliciano v. Romney, 363 F.Supp. 656, 672 (S.D.N.Y. 1973). But see: LaRaza Unida v. Volpe, 337 F.Supp. 221 (N.D.Cal.1971), aff’d., 488 F.2d 559 (9th Cir. 1973). Further, a person displaced by a project undertaken by a private institution receiving federal financial assistance for that project was found ineligible to receive relocation benefits. Parlane Sportswear Company, Inc. v. Weinberger, 381 F.Supp. 410 (D.Mass.1974), aff’d., 513 F.2d 835 (1st Cir. 1975), cert, denied, 423 U.S. 925, 96 S.Ct. 269, 46 L.Ed.2d 252. See also Jones v. HUD, 390 F.Supp. 579 (E.D. La.1974). Eligibility for URA benefits is also based on the requirement that a person be displaced “for a program or project undertaken by a Federal agency, or with Federal financial assistance.” 42 U.S.C. § 4601(6). This requirement has been interpreted to mean construction of new federal projects. Jones v. HUD, supra, 390 F.Supp. at 583. In a case closely resembling the present, the Second Circuit intimated that Congress intended the program or project requirement of 42 U.S.C. § 4601(6) to mean “construction” programs or projects. Caramico v. HUD, 509 F.2d 694, 698 (2d Cir. 1974). In Caramico, a mortgagee of low income dwellings was required by FHA regulations to deliver possession of the mortgage property unoccupied in order to recover federal mortgage insurance. Upon default of the mortgagor and subsequent foreclosure, the mortgagee sought to evict the tenants in order to comply with the vacant delivery requirement. The Court found that the evicted tenants were not displaced within the meaning of 42 U.S.C. § 4601(6) since, although there may have been an acquisition within the meaning of that section, the tenants did not show that the acquisition was for a program or project. Id., at 697. Finding a crucial difference between mortgage insurance acquisitions and acquisitions under programs covered by URA, the Second Circuit characterized the former as “random and involuntary while normal urban renewal contemplates a conscious government decision to dislocate some so that" }, { "docid": "3315346", "title": "", "text": "643 (Mo.1965), appeal dismissed, 385 U.S. 5, 87 S.Ct. 41, 17 L.Ed.2d 4 (1966); Mo.Rev.Stat. § 610.010(2) (1979 Supp.). Although, in Moorer v. Department of Housing and Urban Development, supra at 183, we addressed the application of the URÁ in terms of whether the real property had been acquired “by a government entity with the power of eminent domain,” this did not imply that the mere grant of the power of eminent domain created a governmental entity. Although the grant of the power of eminent domain in some circum stances might indicate the existence of a state instrumentality within the meaning of the URA, we conclude that the other factors reflecting the private nature of the redevelopment project outweigh the significance of the mere grant of the power in this case. There is no evidence that the developer used its eminent domain power to cause any displacements. Historically, the power of eminent domain has been granted by legislative enactment to private corporations, of which railroads and private utilities are prime examples. This grant does not transform these private corporations into governmental entities or instrumentalities of the state. We agree with the District Court that the evidence indicates that both the Pantheon and Pershing Redevelopment corporations should be considered private entities. Thus, acquisitions of property by these corporations in furtherance of their redevelopment project would not be within the scope of the URA. Whether the project has received federal financial assistance depends upon an evaluation of the city’s use of the Community Development Block Grant funds. Since we have already concluded that the city’s agreement with the developer clearly did not render the developer’s project a joint undertaking, financial assistance for municipal services cannot necessarily be equated with financial assistance to the private redevelopment project. This is especially true if the city was not required directly to apply or channel the Community Development Block Grant funds to the municipal services it provided in the Pershing-Waterman area. In any event, federal financial assistance to a private project is insufficient to bring the project into the realm of the URA. See Conway v." }, { "docid": "6913089", "title": "", "text": "Recognizing the disparities and inconsistencies existing among federal and federally assisted programs with respect to the amount and scope of benefits and other assistances, Congress sought to provide uniform treatment for those forced to relocate as a result of federal and federally aided public improvements programs. House Report No. 91-1556, 91st Cong. 2d Sess.; 1970 U.S.Code Cong. & Admin.News. pp. 5582-5583. See also: 42 U.S.C. § 4621. Relocation assistance under URA is afforded to “displaced persons”. 42 U.S.C. § 4601(6) defines a “displaced person” as: “Any person who . . . moves from real property, or moves his personal property from real property, as the result of the acquisition of such real property, . or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency, or with Federal financial assistance; . . . .” Several cases have discussed the eligibility aspects of URA. Even though persons were displaced by an urban renewal project, URA was held inapplicable to that project because the federal government had not executed a contract for a loan or grant—an activity held to be determinative of the federal nature of the project. Feliciano v. Romney, 363 F.Supp. 656, 672 (S.D.N.Y. 1973). But see: LaRaza Unida v. Volpe, 337 F.Supp. 221 (N.D.Cal.1971), aff’d., 488 F.2d 559 (9th Cir. 1973). Further, a person displaced by a project undertaken by a private institution receiving federal financial assistance for that project was found ineligible to receive relocation benefits. Parlane Sportswear Company, Inc. v. Weinberger, 381 F.Supp. 410 (D.Mass.1974), aff’d., 513 F.2d 835 (1st Cir. 1975), cert, denied, 423 U.S. 925, 96 S.Ct. 269, 46 L.Ed.2d 252. See also Jones v. HUD, 390 F.Supp. 579 (E.D. La.1974). Eligibility for URA benefits is also based on the requirement that a person be displaced “for a program or project undertaken by a Federal agency, or with Federal financial assistance.” 42 U.S.C. § 4601(6). This requirement has been interpreted to mean construction of new federal projects. Jones v. HUD, supra, 390 F.Supp. at 583. In a case closely resembling" }, { "docid": "9877947", "title": "", "text": "Act to similar privately developed housing projects. The Eighth Circuit in Moorer v. Department of Housing and Urban Development held that tenants, who were dispossessed from their apartment buildings by private acquisitions of real property, were not “displaced persons” entitled to benefits under the Uniform Relocation Act. Through HUD’s Project Rehab, the defendant American Development Corporation (ADC) was rehabilitating existing structures to provide adequate housing for low and moderate income persons and was aided by federal financial assistance in the form of rent subsidy and interest payments and mortgage insurance under Section 236 of the National Housing Act. 561 F.2d at 177. The court of appeals found that the emphasis in the legislative history “was on the acquisition of real property by federal or federally assisted programs through eminent domain procedures.” Id. at 181. The court concluded: The URA was intended to benefit those displaced in public agencies with coercive acquisition power, such as eminent domain. It was intended to benefit individuals who were not willing sellers. Project Rehab played a significant role in procuring Section 236 benefits for ADC. However, as mentioned elsewhere in this opinion, ADC acquired the property by negotiation with the sellers. ADC is a private entity without power of eminent domain. Therefore, we conclude the appropriate inquiry in determining whether URA benefits attach in this case is: Was the real property acquired by a governmental entity with the power of eminent domain. The focus is not on the degree of involvement by a federal or state agency, or a program of such agency, which results in the acquisition, but is instead on whether the person involved was displaced by governmental action either acquiring the property or issuing an order to vacate the property. Neither situation is present in this case. 561 F.2d at 182-83 (footnote omitted) (emphasis added). See also Dawson v. Department of Housing & Urban Development, 428 F.Supp. 328 (N.D.Ga.1976). The First Circuit in Parlane Sportswear Co. v. Weinberger, 513 F.2d 835 (1st Cir.), cert, denied, 423 U.S. 925, 96 S.Ct. 269, 46 L.Ed.2d 252 (1975), also decided the issue of whether the" }, { "docid": "3315347", "title": "", "text": "transform these private corporations into governmental entities or instrumentalities of the state. We agree with the District Court that the evidence indicates that both the Pantheon and Pershing Redevelopment corporations should be considered private entities. Thus, acquisitions of property by these corporations in furtherance of their redevelopment project would not be within the scope of the URA. Whether the project has received federal financial assistance depends upon an evaluation of the city’s use of the Community Development Block Grant funds. Since we have already concluded that the city’s agreement with the developer clearly did not render the developer’s project a joint undertaking, financial assistance for municipal services cannot necessarily be equated with financial assistance to the private redevelopment project. This is especially true if the city was not required directly to apply or channel the Community Development Block Grant funds to the municipal services it provided in the Pershing-Waterman area. In any event, federal financial assistance to a private project is insufficient to bring the project into the realm of the URA. See Conway v. Harris, supra; Parlane Sportswear Co. v. Weinberger, supra. V Appellants also alleged the city’s failure to comply with Community Development Block Grant application requirements as a basis for the preliminary injunction. Title 42 U.S.C., section 5304(a) requires that Community Development Block Grant applications contain a housing assistance plan, and the 1977 congressional amendments added that this plan must include “provision of a reasonable opportunity for tenants displaced as a result of [restoration and rehabilitation] activities to relocate in their immediate neighborhood, * * *.” 42 U.S.C. § 5304(a)(4)(C). The District Court determined that this requirement did not apply to the Community Development Block Grant funds currently available to the city, because HUD provided that the implementing regulations were effective as of August 1, 1978. 24 C.F.R. § 570.-300(b)(4). We do not address the issue of the effective date of this requirement because it is unlikely that appellants could succeed on the merits of their claim, assuming that the requirement applied to the city’s 1978 application. The discussion regarding the application of the URA reveals that" }, { "docid": "9877943", "title": "", "text": "claims that she was forced to move from her apartment as a result of the acquisition of real property for a program or project undertaken either by a federal agency or with federal financial assistance. We disagree with the plaintiff as we cannot disregard the plain meaning of the Act’s operational sections that govern the scope of eligibility. The Eighth Circuit in Moorer v. Department of Housing and Urban Development, 561 F.2d 175 (8th Cir. 1977), cert, denied, 436 U.S. 919, 98 S.Ct. 2266, 56 L.Ed.2d 760 (1978), considered the same issue of statutory construction that we face here. Discussing the operational sections of the Act in regard to a Section 236 housing project of the National Housing Act, the Moorer court stated: The statute mandates that benefits shall be extended to persons displaced by real property acquisition when the real property is acquired “for a program or project undertaken by a Federal agency” (§ 4622(a)) or “[w]henever real property is acquired by a State agency . . . .” (§§ 4627, 4628). Under § 4630 benefits inure when a person is displaced by action of a State agency operating with a grant “under which Federal financial assistance will be available . . . .” We are therefore drawn to the conclusion that the plain statutory language indicates that the URA benefits are available to displaced persons only on projects undertaken by federal agencies or by state agencies receiving federal financial assistance. This conclusion is supported by other sections of the statute. Section 4633(a) provides that the heads of federal agencies concerned with federal projects “or programs or projects by State agencies receiving Federal financial assistance shall consult together on the establishment of regulations and procedures for the implementation of [programs for relocation assistance].” Section 4633(b)[8] provides that any person aggrieved by a determination as to eligibility for a payment authorized by this chapter, or the amount of a payment, may have his application reviewed by the head of the Federal agency having authority over the applicable program or project, or in the case of a program or project receiving" }, { "docid": "9877946", "title": "", "text": "a case where the Wisconsin Housing Finance Agency acquired the property or gave written notice of eviction to the plaintiff for the construction of a state housing project for which the state received federal financial aid. Id. This court is not deciding those cases today. From the language of the implementing sections of the Act, we agree with the Eighth Circuit that Congress intended to provide URA assistance only to persons displaced by projects undertaken by federal agencies or by state agencies receiving federal financial assistance. Moorer, 561 F.2d at 176-77. We will leave any extension of the statute to Congress. II. Plaintiff argues this case is one of first impression and not governed by other judicial decisions interpreting the coverage of the Uniform Relocation Act. We cannot accept that contention. Although this is the first time this court has considered the circumstances where a person was displaced by a Section 8 housing project, the question of law presented here is not novel as other courts have already determined the applicability of the Uniform Relocation Act to similar privately developed housing projects. The Eighth Circuit in Moorer v. Department of Housing and Urban Development held that tenants, who were dispossessed from their apartment buildings by private acquisitions of real property, were not “displaced persons” entitled to benefits under the Uniform Relocation Act. Through HUD’s Project Rehab, the defendant American Development Corporation (ADC) was rehabilitating existing structures to provide adequate housing for low and moderate income persons and was aided by federal financial assistance in the form of rent subsidy and interest payments and mortgage insurance under Section 236 of the National Housing Act. 561 F.2d at 177. The court of appeals found that the emphasis in the legislative history “was on the acquisition of real property by federal or federally assisted programs through eminent domain procedures.” Id. at 181. The court concluded: The URA was intended to benefit those displaced in public agencies with coercive acquisition power, such as eminent domain. It was intended to benefit individuals who were not willing sellers. Project Rehab played a significant role in procuring" }, { "docid": "3315344", "title": "", "text": "to characterize them as one project undertaken by a state instrumentality. The primary sources of the developer’s relationship with the City of St. Louis are Mo.Rev.Stat. Ch. 353 and City of St. Louis Ordinance 57217. These give the developer special privileges such as the power of eminent domain and tax abatements, and the City of St. Louis has pledged certain assistance to the developer’s project. This assistance has taken various forms. The City has demolished nine vacant buildings, has provided various street improvements, and has sold land to the developer at extremely low cost by virtue of tax foreclosure sales. At the same time, the developer is a privately-held corporation. It was organized and is controlled by private interests, and has arranged to finance its project from wholly private sources. On this evidence, we cannot say that the assistance provided by the city because of its desire to encourage and promote private redevelopment of blighted areas is sufficient to deprive the developer’s project of its status as a private project; a contrary holding is clearly indicated. The cases cited by appellant dealing with state action under the fourteenth amendment are inapposite because they do not reflect congressional intent regarding the URA. The URA defines a state agency as “any department, agency, or instrumentality of a State or of a political subdivision of a State, * * 42 U.S.C. § 4601(3). The House Report on the URA stated that this definition was “self-explanatory.” H.R.Rep.No.91-1656, 91st Cong., 2d Sess., reprinted in [1970] U.S.Code Cong. & Admin.News, pp. 5852-53. The creation of urban redevelopment corporations has not been interpreted as the conversion of private resources into a governmental entity. The states have enlisted the aid of private enterprise to combat urban blight, but have not sought to change the status of these corporations from privately owned, profit-motivated enterprises. See Berman v. Parker, 348 U.S. 26, 33-34, 75 S.Ct. 98, 99 L.Ed. 27 (1954) (acquisition by federal agency, but redevelopment by private enterprise); Council Plaza Redevelopment Corp. v. Duffey, 439 S.W.2d 526, 528 (Mo.1969); Annbar Associates v. West Side Redevelopment Corp., 397 S.W.2d 635," }, { "docid": "9877948", "title": "", "text": "Section 236 benefits for ADC. However, as mentioned elsewhere in this opinion, ADC acquired the property by negotiation with the sellers. ADC is a private entity without power of eminent domain. Therefore, we conclude the appropriate inquiry in determining whether URA benefits attach in this case is: Was the real property acquired by a governmental entity with the power of eminent domain. The focus is not on the degree of involvement by a federal or state agency, or a program of such agency, which results in the acquisition, but is instead on whether the person involved was displaced by governmental action either acquiring the property or issuing an order to vacate the property. Neither situation is present in this case. 561 F.2d at 182-83 (footnote omitted) (emphasis added). See also Dawson v. Department of Housing & Urban Development, 428 F.Supp. 328 (N.D.Ga.1976). The First Circuit in Parlane Sportswear Co. v. Weinberger, 513 F.2d 835 (1st Cir.), cert, denied, 423 U.S. 925, 96 S.Ct. 269, 46 L.Ed.2d 252 (1975), also decided the issue of whether the Uniform Relocation Act provides benefits to persons displaced by a private entity receiving federal financial assistance. In that case the Department of Health, Education and Welfare (HEW) provided Tufts University, a private institution, with large federal grants for a Cancer Research Center. A manufacturer who was evicted by the project brought suit seeking relocation assistance under the Act. From the district court’s dismissal of the complaint, the court affirmed on appeal declaring: The statute extends assistance to persons displaced by the acquisition of real property “for a program or project undertaken by a Federal agency,\" 42 U.S.C. § 4622(a). HEW’s regulations refer to “direct projects of the Department,” 45 C.F.R. 515.5(a), and deny aid to persons displaced by federally assisted projects of private entities, 45 C.F.R. § 15.6. We find no compelling indications that HEW’s contemporaneous construction of the statute is wrong. 513 F.2d at 836-37 (emphasis added). In this case the private entity Architektur-80 acquired the property from a private party, and a private entity issued the plaintiff a written order to vacate the" } ]

[ { "docid": "13444364", "title": "", "text": "Code must be construed to include all those so connected with a corporation as to be responsible for the performance of the act in respect of which the violation occurred.” 8A Mertens, Federal Income Taxation § 47A.25a, at 128-29 (1964). More than one officer of a corporation may be liable for this penalty for failure of the corporation to pay over withholding and FICA taxes. Datlof v. United States, 252 F.Supp. 11 (E.D.Pa.), aff’d, 370 F.2d 655 (3 Cir. 1966). The penalty was assessed for failure to pay over to the government the withholding and FICA taxes for the second and third quarters of 1965. The nature of the suit and the records show that plaintiff was apparently one of the corporate officers or directors during the pertinent period. The government filed a third-party complaint against the third-party defendants alleging that each had been assessed the penalty as being a “responsible person” within the meaning of the statute, and “is liable to the defendant * * * for all of the plaintiff’s claim against it.” Plaintiff filed her motion to dismiss the third-party complaint pursuant to Rule 14, F.R.Civ.P., asserting this is an improper case for impleader on the ground that the third-party complaint stated a separate and distinct claim which required proof that each of the third-party defendants was the responsible officer and acted willfully. Rule 14(a) permits “a defending party, as a third-party plaintiff, * * * [to] cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.” Moore, Federal Practice 2d, Yol. 3, J[ 14.05[1], at 504 (1963) [hereinafter referred to as 3 Moore] states that the purpose of Rule 14 is “to avoid circuity of action and to settle related matters in one litigation as far as practicable.” Plaintiff moves for dismissal of the third-party complaint in reliance upon the recent decision in United States v. Joe Grasso & Son, Inc., 380 F.2d 749 (5 Cir.1967), which affirmed the district court’s" } ]

[ { "docid": "13444368", "title": "", "text": "over to the defendant for all or part of the plaintiff’s recovery * However, the very wording of Rule 14 indicates that there is nothing to require that the third-party defendant be “automatically liable,” since it reads “is or may be liable.” As is stated by Moore: “[T]he allegations of the third-party complaint need not show that recovery is a certainty; the complaint should be allowed to stand if, under some construction of the facts which might be adduced at trial, recovery would be possible.” 3 Moore, ¶ 14.10, at 555. Regardless of whether the recovery (if any) by plaintiff and that by third-party plaintiff rest on different theories, Moore states that “it is immaterial that the liability of the third party rests on a different theory from that underlying plaintiff’s claim.” Id. at 553-54. This has been well stated by the Fifth Circuit in American Fid. & Cas. Co. v. Greyhound Corp., 232 F.2d 89, 92 (5 Cir. 1956): “It is settled that impleader under Rule 14(a) does not require an identity of claims, or even that the claims rest on the same theory. Otherwise the purposes of the Rule would be defeated. Plainly, if the theories differ, the facts supporting each will differ, and the question is what degree of difference will be allowed in the facts relied upon. In answering this question, the purposes of the Rule, including the desire to avoid circuity of actions and to obtain consistent results, must be balanced against any prejudice which the impleaded party might suffer, and these considerations are left to the discretion of the trial court.” This is not to say that impleader is a “device for bringing into an action any controversy which may happen to have some relationship with it.” 3 Moore, ¶ 14.04, at 502. A trial court would be proper in denying third-party practice if “it would introduce an unrelated controversy or unduly complicate the case to the prejudice of the plaintiff.” 3 Moore, ¶ 14.05 [1], at 505. This is by no means an “unrelated controversy,” and the only prejudice possible to plaintiff is" }, { "docid": "718828", "title": "", "text": "party to the agreement and received no benefits thereunder. Fed.R.Civ.P. 14(a) defines a permissible third-party claim as one against “a person not a party to the action who is or may be liable [to the defendant] for all or part of the plaintiffs claim against him.” (Emphasis added). This limiting language means that “[a] third-party claim may be asserted under Rule 14(a) only when the third party’s liability is in some way dependent on the outcome of the main claim or when the third party is secondarily liable to the defendant.” 6 C. Wright & A. Miller, Federal Practice and Procedure § 1446, at 246 (1971) (footnotes omitted); see also Kenneth Leventhal & Co. v. Joyner Wholesale Co., 736 F.2d 29, 31 (2d Cir.1984) (affirming district court’s dismissal of third-party claims on grounds that “the third party’s liability here is neither dependent upon the outcome of the main claim nor is the third party potentially secondarily liable as a contributor to the defendant”); Index Fund, Inc. v. Hagopian, 417 F.Supp. 738, 744 (S.D.N.Y.1976) (Rule 14 requires that the third-party claim “accrue only upon a finding of defendant’s liability to the plaintiff on the main claim”). A third-party claim is not permissible simply because it arises out of the same nucleus of facts as the main claim. As Professor Moore has stated: It must be emphasized ... that generally an entirely separate claim may not be asserted against a third party under Rule 14, even though it arises out of the same general set of facts as the main claim. There must be an attempt to pass on to the third party all or part of the liability asserted against the defendant. 3 J. Moore, Moore’s Federal Practice § 14.07[1], at 14-42 (1985) (footnotes omitted) (emphasis added). Nevertheless, this should not obscure the general purpose of Rule 14: “to avoid two actions which should be tried together to save the time and cost of a reduplication of evidence [and] to obtain consistent results from identical or similar evidence.” CromptonRichmond Co., Inc., Factors v. United States, 273 F.Supp. 219, 220 (S.D.N.Y.1967). Rescission" }, { "docid": "1630410", "title": "", "text": "does not foreclose other types of claims in a third-party complaint. That said, regardless of the type of claim asserted, the “the third party must necessarily be liable over to the defendant for all or part of the plaintiffs recovery,” or “the defendant must attempt to pass on to the third party all or part of the liability asserted against the defendant.” United States v. Joe Grasso & Son, Inc., 380 F.2d 749, 751-52 (5th Cir.1967). In other words, “[t]he outcome of the third-party claim must be contingent on the outcome of the main claim____” Nat’l Bank of Canada v. Artex Indus., Inc., 627 F.Supp. 610, 613 (S.D.N.Y.1986). B. Vibe’s Third-Party Claims Within the framework of Rule 14, a claim by claim analysis reveals that the allegations asserted against the Third-Party Defendants in the third-party complaint are not derivative or secondary to the Plaintiffs claims under any theory advanced by the Defendants. A third-party complaint “is a narrow device” and cannot be used to bring in other matters that may have some relationship to the case. deHaas v. Empire Petroleum Co., 286 F.Supp. 809, 815 (D.Colo. 1968) (quoting 3 Moore’s Federal Practice H 14.04) (dismissing all claims in the third-party complaint seeking affirmative or injunctive relief against the third-party defendant); see also Marshall v. Pointon, 88 F.R.D. 566, 568 (W.D.Okl.1980) (dismissing third party complaint that was not be dependent on the outcome of the main action). For starters, it is clear from the forms of relief requested in the third-party complaint — punitive damages, injunction, lost earnings and profits — that the Defendants are not attempting to pass on all or part of the liability asserted by the Plaintiff, but seek affirmative and equitable relief above and beyond the relief sought by the Plaintiff. In addition, all of the claims in the third-party complaint are unrelated to the narrow issues presented in the original complaint. The main action in this case involves a singer who entered into a recording contract, which Vibe allegedly breached by failing to account for royalties owed under the agreement. Doucette also brought claims for false" }, { "docid": "674200", "title": "", "text": "the above reasons, Garrett argues that he is not a person that may be impleaded as a third-party defendant under Rule 14(a). In response to Garrett’s argument that liability must be an “either/or proposition”, the language of Rule 14(a) permits joinder where a person “is or may be liable”. Under Rule 14(a), the allegations of the third-party complaint need not show that the recovery is a certainty and the complaint should be allowed to stand if, under some construction of the facts, which might be adduced at trial, recovery would be possible. 3 Moore, Federal Practice, jf 14.10, at 555. Rule 14 is, therefore, clearly not limited to situations where the third-party defendant will automatically be liable to the defendant for all or part of the plaintiff’s claim. Such a construction would emasculate the rule and defeat its broad, remedial purpose. Under the facts of this case, we must conclude that although other persons who have not been joined are potentially liable as responsible persons, the present third-party defendants are or may be liable for all or part of plaintiff’s claim against the Government. See McGee v. United States, (E.D.Pa. November 21, 1972) (Hannum, J.— unreported decisions; Abrams v. United States, 52 F.R.D. 578 (S.D.W.Va.1971); Wilkie v. United States, 279 F.Supp. 671 (N.D.Tex.1968); Crompton-Richmond Co., Inc. Factors v. United States, 273 F.Supp. 219 (S.D.N.Y.1967); Monday v. United States, 12 F.R.Serv. 146 (E.D.Wis.1967). Under Rule 14, the liability of the third-party must be dependent on the outcome of the main claim. United States v. Joe Grasso & Son, Inc., supra. Thus, in the event plaintiff prevails in the instant case, third-party defendants may be liable to the Government for all or part of plaintiff’s claim which amounts to $80.95. In Schwab v. Erie Lackawanna R. Co., 438 F.2d 62, 68 (3d Cir. 1971), the Court of Appeals rejected the view that Rule 14, in and of itself, permits recovery of damages in excess of those sought by the original plaintiff in his main claim, relying on United States v. Joe Grasso & Sons, Inc., supra. The Court, however, continued, holding that" }, { "docid": "19175270", "title": "", "text": "to implead these four prior defendants six years after they settled with the plaintiff, it is not surprising in light of the manner in which this action has been litigated. The action was instituted in 1972, after Limited was adjudicated a bankrupt. From 1975 to 1978 there was no docketed activity, and therefore, the Court closed the case. In 1979, the plaintiff moved to restore the case to the court calendar and the motion was granted. The plaintiff then attempted to take a second deposition of Gabor. When Gabor did not respond to the notice of deposition, the plaintiff moved, pursuant to Rule 37, to strike Gabor’s answer. The Court granted the plaintiff’s motion, and in 1983 a default judgment was entered against Gabor. That judgment was subsequently set aside upon motion by the defendant, and in August 1984, the defendant filed an answer with leave of the Court. See 102 F.R.D. 561 (S.D.N.Y.1984). In February 1985, the defendant filed an amended answer in response to the plaintiff’s second amended complaint, and in March 1985, the defendant moved for leave to serve and file a third-party complaint. Rule 14(a) provides in relevant part that “[a]t any time after commencement of the action a defending party ... may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.” However, unless the third-party complaint is filed within ten days of the defendant’s answer, the defendant must obtain leave of the court to implead a third party. The purpose of Rule 14(a) is to promote judicial economy, achieve consistency of results, and avoid circuity of action. See State Mutual Life Assur. Co. v. Arthur Andersen & Co., 65 F.R.D. 518, 521 (S.D.N.Y.1975); 3 Moore’s Federal Practice, supra, ¶ 14.04. The right to implead third parties, however, is not automatic; the decision to permit impleader rests within the sound discretion of the trial court. See Rosario v. Amalgamated Ladies’ Garment Cutters’ Union, 605 F.2d 1228, 1247 (2d Cir.1979), cert." }, { "docid": "22987463", "title": "", "text": "would not have been appreciably prolonged by such determination.” Id. On these considerations rested the conclusion that Rule 14 would support the additional claim for damages beyond those sought in the claim for liability-over. See Cromp-ton-Richmond Co., Factors v. United States, 273 F.Supp. 219, 221 (S.D.N.Y. 1967). (“It is * * * no obstacle that affirmative relief is sought against the proposed third-party defendants, above the amount claimed by [the original plaintiff].”) Our research has failed to disclose, however, any other decision in which a court has squarely accepted the proposition that Rule 14 applies to claims other than those grounded on the theory that the third-party defendant “is or may be liable to [the third-party plaintiff] for all or part of the plaintiff’s claim against him”. Indeed, all other cases which have considered the issue, including those distinguished or disapproved in Noland, have taken a contrary view. In C. W. Humphrey Co. v. Security Aluminum Co., 31 F.R.D. 41, 44 (E.D.Mich. 1962), for example, the court concluded: “Rule 14 limits third-party complaints to actions-over for part or all of the plaintiff’s claim. It does not allow actions for other damages.” See also United States v. Joe Grasso & Son, Inc., 380 F. 2d 749 (5 Cir. 1967); United States Fidelity & Guar. Co. v. American State Bank, 372 F.2d 449 (10 Cir. 1967); City of Philadelphia to Use of Warner Co. v. Nat’l Surety Co., 140 F.2d 805 (3 Cir. 1944); De Haas v. Empire Petroleum Co., 286 F.Supp. 809 (D.Colo.1968). As stated in 3 Moore’s Federal Practice f[ 14.07, at 512: But a defendant cannot assert an entirely separate claim against a third party under Rule 14, even though it arises out of the same general set of facts as the main claim; there must be an attempt to pass on to the third party all or part of the liability asserted against the defendant. Although we are sympathetic with much of the rationale in Noland, and find the result therein desirable, we too must reject the view that Rule 14 permits recovery of damages in excess of," }, { "docid": "19175271", "title": "", "text": "the defendant moved for leave to serve and file a third-party complaint. Rule 14(a) provides in relevant part that “[a]t any time after commencement of the action a defending party ... may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.” However, unless the third-party complaint is filed within ten days of the defendant’s answer, the defendant must obtain leave of the court to implead a third party. The purpose of Rule 14(a) is to promote judicial economy, achieve consistency of results, and avoid circuity of action. See State Mutual Life Assur. Co. v. Arthur Andersen & Co., 65 F.R.D. 518, 521 (S.D.N.Y.1975); 3 Moore’s Federal Practice, supra, ¶ 14.04. The right to implead third parties, however, is not automatic; the decision to permit impleader rests within the sound discretion of the trial court. See Rosario v. Amalgamated Ladies’ Garment Cutters’ Union, 605 F.2d 1228, 1247 (2d Cir.1979), cert. denied, 446 U.S. 919, 100 S.Ct. 1853, 64 L.Ed.2d 273 (1980); 6 Wright & Miller, supra, § 1443 at 208. The court must balance the benefits derived from impleader—that is, the benefits of settling related matters in one suit— against the potential prejudice to the plaintiff and third-party defendants. See State Mutual, 65 F.R.D. at 521. Under the local rules of this court, an impleader motion should be made within six months of the service of the moving party’s answer. For purposes of this motion, the date on which the defendant filed her answer—-August 16, 1984—is the relevant date, rather than the date the amended answer was filed. See In Re “Agent Orange”, 100 F.R.D. 778, 780 (E.D.N.Y.1984) (“The filing of an amended complaint ... does not afford an opportunity to implead without leave of the court.”). Where, as here, the motion is made after the six-month period, the motion will be denied, unless the moving party makes a “showing of special circumstances of the necessity for such relief in the interest of justice____” Rule" }, { "docid": "23710284", "title": "", "text": "defendant. As Professor Moore has written: “With a few exceptions, especially in the earlier decisions, the weight of authority supports the view herein advocated : the third-party defendant has no objection based on venue.” 3 Moore’s Federal Practice |f 14.28 [2]. (footnotes omitted) The courts have held that the reasoning which supports ancillary subject matter jurisdiction over a third-party claim also supports ancillary venue. McGonigle v. Penn-Central Transportation Co., 49 F.R.D. 58, 60 (D.Md.1969); 6 C. Wright and A. Miller, Federal Practice and Procedure § 1445. Specifically, the purpose of the Federal Rules is to “simplify and expedite procedure.” Consistent with this, “[t]he purpose of Rule 14 was to accomplish in one proceeding the adjudication of the rights of all persons concerned in the controversy * * United States v. Acord, 209 F.2d 709, 712 (10th Cir.), cert. denied, 347 U.S. 975, 74 S.Ct. 786, 98 L.Ed. 1115 (1954). As this court said in one of its earliest decisions considering this issue, “the spirit and purpose of Rule 14 to a great extent would be frustrated if the venue statutes had to be applied to third-party proceedings under the Rule.” Morrell v. United Air Lines Transport Corp., 29 F.Supp. 757, 759 (S.D.N.Y. 1939). Therefore this court in Thompson v. United Artists Theatre Circuit, Inc., 43 F.R.D. 197, 201 (S.D.N.Y.1967), a diversity action, recently reaffirmed that if venue is proper in the principal action, there need be no independent basis for venue in the third-party claim. The Second Circuit had earlier espoused this position in dictum. Agrashell, Inc. v. Bernard Sirotta Co., 344 F.2d 583, 585 (2d Cir. 1965). In addition, in United States v. Acord, supra, 209 F.2d at 713, where the United States as third-party defendant moved to dismiss under the venue provision of the Tort Claims Act, the Tenth Circuit adopted the rule that a third-party defendant could not raise the venue defense. Acord was recently followed in McGonigle v. Penn-Central Transportation Company, supra, 49 F.R.D. at 61, a federal question action under the Federal Employers’ Liability Act. NBNA contends, however, that to deprive third-party defendants of the" }, { "docid": "674201", "title": "", "text": "all or part of plaintiff’s claim against the Government. See McGee v. United States, (E.D.Pa. November 21, 1972) (Hannum, J.— unreported decisions; Abrams v. United States, 52 F.R.D. 578 (S.D.W.Va.1971); Wilkie v. United States, 279 F.Supp. 671 (N.D.Tex.1968); Crompton-Richmond Co., Inc. Factors v. United States, 273 F.Supp. 219 (S.D.N.Y.1967); Monday v. United States, 12 F.R.Serv. 146 (E.D.Wis.1967). Under Rule 14, the liability of the third-party must be dependent on the outcome of the main claim. United States v. Joe Grasso & Son, Inc., supra. Thus, in the event plaintiff prevails in the instant case, third-party defendants may be liable to the Government for all or part of plaintiff’s claim which amounts to $80.95. In Schwab v. Erie Lackawanna R. Co., 438 F.2d 62, 68 (3d Cir. 1971), the Court of Appeals rejected the view that Rule 14, in and of itself, permits recovery of damages in excess of those sought by the original plaintiff in his main claim, relying on United States v. Joe Grasso & Sons, Inc., supra. The Court, however, continued, holding that Rule 14 must be read in conjunction with Rule 18, which provides in pertinent part: “[a] party asserting a claim to relief as * * * [a] third-party claim, may join, either as independent or as alternative claims, as many claims * * * as he has against an opposing party.” Under these rules, the claim is treated as ancillary, and need not independently meet the tests of jurisdiction and venue. Barron & Holtzoff, 1A Federal Practice and Procedure, § 426, at 43 (Supp.1969). In addition, the liability is “accelerated” under Rule 14, thus permitting the impleading of third-party defendants even though they are only potentially liable. We, therefore, conclude that third-party defendant, Garrett, is or may be liable for all or part of plaintiff’s claim against the Government and that by reading Rules 14 and 18 together as required by Schwab, the Government may seek to proceed against third-party defendant to recover the full amount of the assessment, in the event plaintiff prevails. In so concluding, we are in accord with the Grasso holding" }, { "docid": "9425856", "title": "", "text": "FRANKEL, District Judge. Plaintiff, Crompton-Riehmond Co., Inc., Factors, has sued to recover $8,919.64 in taxes it paid as a penalty, pursuant to §§ 6671 and 6672 of the Internal Revenue Code of 1954, for failure to collect and pay federal withholding and employment taxes of Dynamic Techniques, Inc. Dynamic, now bankrupt, failed to collect and pay these taxes for the first and second quarters of 1963, and the Commissioner assessed a 100% penalty against plaintiff as a “responsible person.” Similar penalties were assessed against Bernard Mondry, Anne Mondry, Vincent De Sousa, and Philip Pushkin, officers of Dynamic, for varying periods during the first two quarters of 1963. By this motion, the United States seeks to join these four persons as third-party defendants under Fed.R.Civ.P. 14 on the ground that “one or more or all of them may be liable to defendant for all or part of plaintiff’s claim against defendant.” The Government also proposes to seek affirmative relief against the third-party defendants for short periods of responsibility not encompassed by the Crompton-Riehmond assessment. In support of the motion, the Government refers to its “policy” of seeking to collect only once penalties of the type in question, observing (persuasively) that efforts to collect more than once “would be of doubtful validity.” Accordingly, it is argued, if plaintiff prevails in the action, each individual named in the third-party complaint is, in the language of Rule 14(a), “a person * * * who is or may be liable to [the Government] * * * for all or part of the plaintiff’s claim against [the Government].” Essentially identical contentions have been found persuasive in the only square precedents disclosed by the researches of counsel and the court. Gardner v. United States, 36 F.R.D. 453 (S.D.N.Y.1964) ; Dunham v. United States, 42 F.R.D. 169 (D.Conn.1967). I agree with, and will follow, those decisions. Opposing this result, plaintiff argues that a third-party complaint must assert a liability which flows as a direct result from a liability of the original defendant to the plaintiff. Reasoning in terms of the classical indemnity model, plaintiff urges that the proposed" }, { "docid": "13293853", "title": "", "text": "claim for liability over — and thus, by hypothesis as the original claim of plaintiff against defendant — it would seem, by analogy to principles settled in other areas, that the additional claim too should be treated as ancillary for purposes of jurisdiction and venue. (Footnotes omitted.)” (pp. 69, 70) Third-party defendant Fisler cites Joe Grazzo & Son, Inc. v. United States, 380 F.2d 749 (5th Cir. 1967) in support of his contention that the government should not have been permitted to implead him pursuant to Rule 14(a). Grazzo is factually dissimilar in that the third-party complaint while arising out of the same general fact pattern as plaintiff’s claim, did not stem from the identical set of operative facts as plaintiff’s claim. In the ease at bar it was clear that the third-party defendant might be liable to the defendant on the same operative facts as the defendant might be liable to the plaintiff. It is true that the third-party defendant in the present case might not have been held liable to the defendant in the event the latter was held liable to the plaintiff because the jury might have found that the third-party defendant did not act “willfully”, but Rule 14 is clearly not limited to situations where the third-party defendant will automatically be liable to the defendant for all or part of the plaintiff’s claim. See 3 Moore’s Federal Practice ¶| 14.10 at 555. The Court’s determination that defendant’s third-party complaint was proper in the factual context of this action is consistent with the broad purpose of Rule 14(a), which is to avoid circuity of actions. This view is supported by several recent decisions. See Abrams v. United States, 52 F.R.D. 578 (S.D.W.Va.1971); Wilkie v. United States, 279 F.Supp. 671 (N.D.Texas 1968); Crompton-Richmond Co., Inc., Factors v. United States, 273 F.Supp. 219 (S.D.N.Y.1967); Dunham v. United States, 42 F.R.D. 169 (D. Conn.1967); Monday v. United States v. Monday, 12 F.Rules Serv.2d 14a.11, case 3; Gardner v. United States, 36 F.R.D. 453 (S.D.N.Y.1964). While the Court’s initial ruling dismissing the defendant’s claim for affirmative relief constituted the lav/ of" }, { "docid": "7348317", "title": "", "text": "co-plaintiffs in the action and are therefore inapposite to the case at bar. Smith v. Brown, D.C.M.D.Pa.1955, 17 F.R.D. 39; Chevassus v. Harley, D.C.W.D.Pa.1948, 8 F.R.D. 410. A plaintiff having sought the jurisdiction of the court is clearly a party to the action within the meaning of the rule and is to be distinguished from a party who though named in the complaint is not subject to the personal jurisdiction of the court and against whom no judgment in personam can be granted. If such an argument were to prevail here a plaintiff would be in a position to obstruct a defendant’s right to indemnity under Rule 14(a) merely by naming someone as a co-defendant without making service upon him. In this case the third party plaintiffs were served with the complaint on March 1, 1957. No service having been made upon the third party defendant to date it is reasonable to assume that none will be forthcoming. The situation is similar to one where a plaintiff obtains a voluntary dismissal of his action as to one of the co-defendants named in the complaint. Under such circumstances the party against whom the complaint is dismissed can be subsequently brought in under accepted third party practice. See Shannon v. Massachusetts Bonding & Ins. Co., D.C.W.D.La.1945, 62 F.Supp. 532, 536. The purpose of Rule 14 was to avoid circuity and multiplicity of action by affording an opportunity to aceomplish in one proceeding the adjudication of the rights of all persons concerned in the controversy. Toward this end the rule is liberally applied. Russell Poling & Co. v. United States, D.C.S.D.N.Y. 1956, 140 F.Supp. 890, 893; Lawrence v. Great Northern Ry. Co., D.C.Minn. 1951, 98 F.Supp. 746, 748. Consistent with this policy I find that for the purpose of Rule 14 the third party defendant was not a party to the action and could properly be served with a third party complaint. ■ Rule 14(a) authorizes the service by defendant of a third party complaint “upon a person * * * who is or may be liable to him for all or part" }, { "docid": "5912219", "title": "", "text": "to the original defendants for any losses the latter might suffer as a consequence of this suit. As to the lack of diversity of citizenship between the original defendants and those they seek to implead, the authorities appear clear that no such requirement of diversity is contemplated by the statute. “Clearly a third-party claim by a defendant that a third person is liable to him for all or part of the claim in suit is so closely involved with the subject matter of the action as to be regarded as ancillary thereto. Thus if the court has jurisdiction of the principal action, it needs no independent grounds of jurisdiction to entertain and determine the defendant’s third-party claim.” 1 Barron and Holtzoff, Federal Practice and Procedure, § 424 (1950). See also 3 Moore, Federal Practice, § 1426 (2d ed. 1948); Saba v. Emil Katz & Co., D.C.S.D.N.Y.1944, 55 F.Supp. 1000; Schroeder v. Mid-Hudson Packing Co., D.C.S.D.N.Y.1952, 13 F.R.D. 508; Morrell v. United Air Lines Transport Corp., D.C.S.D.N.Y.1939, 29 F.Supp. 757; Pyzynski v. New York Cent. R. Co., D.C.W.D.N.Y.1946, 7 F.R.D. 302. Since most of the issues of fact and of liability as to the original defendants and as to the proposed third-party defendants are substantially the same, and since the proposed third-party defendants are or may be liable to the original defendants for all or part of the plaintiffs’ claim against them, this is a claim properly within the scope of Rule 14. Plaintiffs have also objected to this motion on the ground of laches in that the complaint was brought in January of this year, answer was served in February, and the case is presently on the trial calendar, although it has not yet been assigned for trial. A motion under Rule 14 is a matter for the discretion of this Court. Motions under this rule should most properly be made as soon as possible after the filing of the pleadings in the suit. However, we must balance the possible delay in the trial of this case against the aim of Rule 14 to avoid circuity of litigation and the" }, { "docid": "13293855", "title": "", "text": "the case, the doctrine of “law of the case” does not require this Court to perpetuate error once such error is brought to the Court’s attention. Burns v. Massachusetts Institute of Technology, 394 F.2d 416 (1st Cir. 1968). In Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152, the Supreme Court through Justice Holmes stated: “In the absence of statute the phrase ‘law of the case’, as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.” As stated in IB Moore’s Federal Practice, ¶ 0.404[1] at 407: “Since a lower federal court cannot by its law of the case bind a higher court having appellate jurisdiction over it, the only sensible thing for a lower federal court, including an intermediate appellate court, to do is to set itself right instead of inviting reversal above, when convinced that its law of the case is substantially erroneous. This it could not do if the theory were adopted that the law of the case had the effect of res judicata. In addition, that theory is further impaired by the duty of a federal court to apply a new and supervening rule of applicable law, federal or state, as the case may be, so long as the action is sub judice.” [footnotes omitted] See also, Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941); Hertz v. Graham, 292 F.2d 443 (2d Cir. 1961); Boundary County, Idaho v. Woldson, 144 F.2d 17 (9th Cir. 1944); Johnson v. Cadillac Motor Car Co., 261 F. 878 (2d Cir. 1919). To sustain the Court’s initial ruling at this time would require the court to ignore the interpretation of the Federal Rules of Civil Procedure rendered by the Court of Appeals for the Third Circuit in Schwab. Amendment of the judgment pursuant to the Court’s power under Rule 59(e), Fed.R.Civ.P. granting judgment to the defendant on" }, { "docid": "22862318", "title": "", "text": "entirely separate and independent claim cannot be maintained against a third party under Rule 14, even though it does arise out of the same general set of facts as the main claim. Cf. Horn v. Daniel, 315 F.2d 471, 474 (10th Cir. 1962); Kohn v. Teleprompter Corp., 22 F.R.D. 259 (S.D.N.Y.1958). The question whether a defendant’s demand presents an appropriate occasion for the use of impleader or else constitutes a separate claim has been resolved consistently by permitting impleader only in cases where the third party’s liability was in some way derivative of the outcome of the main claim. In most such cases it has been held that for impleader to be available the third party defendant must be “liable secondarily to the original defendant in the event that the latter is held liable to the plaintiff.” (emphasis added) Holtzoff, Entry of Additional Parties in a Civil Action, 31 F.R.D. 101, 106 (1962). Accord, Cass v. Brown, 41 F.R.D. 284, 286 (D.Colo.1966); National Fire Ins. Co. v. Daniel J. Keating Co., 35 F.R.D. 137, 139 (W.D.Pa.1964). Stating the same principle in different words, other authorities declare that the third party must necessarily be liable over to the defendant for all or part of the plaintiff’s recovery, 1A Barron & Holtzoff, Federal Practice and Proc. Sec. 426, at 664-669, or that the defendant must attempt to pass on to the third party all or part of the liability asserted against the defendant, 3 Moore’s para. 14.07, at 512; see Kohn v. Teleprompter, supra. Which ever expression is preferred, it is clear that impleader under Rule 14 requires that the liability of the third party be dependent upon the outcome of the main claim. Of course, the government does not contend that the ease before us presents the usual situation where impleader is used, i. e., where the third party will be secondarily liable for the judgment against the original defendant. It tells us, however, that the liability of Grasso and the captains is so closely related that one of them will “in all likelihood” be liable for the employment taxes. The" }, { "docid": "13293854", "title": "", "text": "the event the latter was held liable to the plaintiff because the jury might have found that the third-party defendant did not act “willfully”, but Rule 14 is clearly not limited to situations where the third-party defendant will automatically be liable to the defendant for all or part of the plaintiff’s claim. See 3 Moore’s Federal Practice ¶| 14.10 at 555. The Court’s determination that defendant’s third-party complaint was proper in the factual context of this action is consistent with the broad purpose of Rule 14(a), which is to avoid circuity of actions. This view is supported by several recent decisions. See Abrams v. United States, 52 F.R.D. 578 (S.D.W.Va.1971); Wilkie v. United States, 279 F.Supp. 671 (N.D.Texas 1968); Crompton-Richmond Co., Inc., Factors v. United States, 273 F.Supp. 219 (S.D.N.Y.1967); Dunham v. United States, 42 F.R.D. 169 (D. Conn.1967); Monday v. United States v. Monday, 12 F.Rules Serv.2d 14a.11, case 3; Gardner v. United States, 36 F.R.D. 453 (S.D.N.Y.1964). While the Court’s initial ruling dismissing the defendant’s claim for affirmative relief constituted the lav/ of the case, the doctrine of “law of the case” does not require this Court to perpetuate error once such error is brought to the Court’s attention. Burns v. Massachusetts Institute of Technology, 394 F.2d 416 (1st Cir. 1968). In Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152, the Supreme Court through Justice Holmes stated: “In the absence of statute the phrase ‘law of the case’, as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.” As stated in IB Moore’s Federal Practice, ¶ 0.404[1] at 407: “Since a lower federal court cannot by its law of the case bind a higher court having appellate jurisdiction over it, the only sensible thing for a lower federal court, including an intermediate appellate court, to do is to set itself right instead of inviting reversal above, when convinced that its" }, { "docid": "22987462", "title": "", "text": "action, can be proceeded against by the third-party plaintiff upon a claim closely related to, yet different from and for an amount in excess of, the original plaintiff’s claim. Id. (emphasis by the court). Acknowledging that a third district court case, United States v. Scott, 18 F. R.D. 324 (S.D.N.Y.1955), was “factually apposite”, the Noland court found the case “not controlling” and “not * * * persuasive in determining the question here”. Id. The court’s analysis proceeded on the theory that “[o]ne of the primary objectives of third-party procedure is to avoid circuity and multiplicity of actions”. Id. at 50. And although it recognized that “ [situations might arise where independent claims between [third parties] * * * could not be litigated expeditiously and without serious or seemingly endless complications,” id., such a situ ation was not found to be present in No-land. The third-party defendant had conceded that the profit issue was “not, in any way, complicated; that a determination thereof would not have been unduly burdensome to any party litigant; that the litigation would not have been appreciably prolonged by such determination.” Id. On these considerations rested the conclusion that Rule 14 would support the additional claim for damages beyond those sought in the claim for liability-over. See Cromp-ton-Richmond Co., Factors v. United States, 273 F.Supp. 219, 221 (S.D.N.Y. 1967). (“It is * * * no obstacle that affirmative relief is sought against the proposed third-party defendants, above the amount claimed by [the original plaintiff].”) Our research has failed to disclose, however, any other decision in which a court has squarely accepted the proposition that Rule 14 applies to claims other than those grounded on the theory that the third-party defendant “is or may be liable to [the third-party plaintiff] for all or part of the plaintiff’s claim against him”. Indeed, all other cases which have considered the issue, including those distinguished or disapproved in Noland, have taken a contrary view. In C. W. Humphrey Co. v. Security Aluminum Co., 31 F.R.D. 41, 44 (E.D.Mich. 1962), for example, the court concluded: “Rule 14 limits third-party complaints to actions-over" }, { "docid": "965294", "title": "", "text": "Erie Conduit Corp. v. Metropolitan Asphalt Paving, 560 F.Supp. 305, 307-08 (E.D.N.Y.1983) as follows: “Law of the case rules have developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single lawsuit.” 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4478 at 788 (1981).... The doctrine of law of the case “merely expresses the practice of courts generally to refuse to reopen what has been decided, [and is] not a limit to their power.” Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912) (Justice Holmes). See also United States v. Birney, 686 F.2d 102, 107 (2d Cir.1982) (application of law of the case doctrine is not an inviolate rule); Schupak v. Califano, 454 F.Supp. 105, 114 (E.D.N.Y.1978) (“[T]he principle is not inexorable or absolute, but is founded on the policy of judicial economy.”). It is generally held, however, that “where litigants have once battled for the court’s decision, they should neither be required, nor without good reason permitted, to battle for it again.” Zdanok v. Glidden Company, Durkee Famous Foods Division, 327 F.2d 944, 953 (2d Cir.), cert. denied, 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298 (1964). Factors justifying departure from this general rule were summarized in the frequently cited case of White v. Murtha, 377 F.2d 428 (5th Cir.1967), where the court stated that: ‘[L]aw of the case’ ... must be followed in all subsequent proceedings in the same case ... unless ... controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice. Id. at 431-32. See also, Baden v. Koch, 799 F.2d 825, 828 (2d Cir.1986); Doe v. New York City Department of Social Services, 709 F.2d 782, 789 (2d Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983), in each of which the court stated that it would “not depart from the sound policy of the law of the case doctrine absent ‘cogent’ or ‘compelling’ reasons. The" }, { "docid": "9425857", "title": "", "text": "of the motion, the Government refers to its “policy” of seeking to collect only once penalties of the type in question, observing (persuasively) that efforts to collect more than once “would be of doubtful validity.” Accordingly, it is argued, if plaintiff prevails in the action, each individual named in the third-party complaint is, in the language of Rule 14(a), “a person * * * who is or may be liable to [the Government] * * * for all or part of the plaintiff’s claim against [the Government].” Essentially identical contentions have been found persuasive in the only square precedents disclosed by the researches of counsel and the court. Gardner v. United States, 36 F.R.D. 453 (S.D.N.Y.1964) ; Dunham v. United States, 42 F.R.D. 169 (D.Conn.1967). I agree with, and will follow, those decisions. Opposing this result, plaintiff argues that a third-party complaint must assert a liability which flows as a direct result from a liability of the original defendant to the plaintiff. Reasoning in terms of the classical indemnity model, plaintiff urges that the proposed third-party defendant must be “secondarily liable,” subject to a “liability over, based on plaintiff’s claim against defendant in the original suit.” This is too restrictive a view of the Rule’s meaning and familiar purpose. “The general purpose of Rule 14 is to, avoid two actions which should be tried together to save the time and cost of a reduplication of evidence [andj to obtain consistent results from identical or similar evidence * * 3 Moore, Federal Practice, ¶ 14.04 (2d ed. 1966). See also, Agrashell, Inc. v. Bernard Sirotta Co., 344 F.2d 583, 585 (2d Cir. 1965) ; Dery v. Wyer, 265 F.2d 804, 806-807 (2d Cir.1959). The foregoing language goes to the heart of the matter. And the situation in this case falls comfortably within the class for which Rule 14 was designed. While the third parties are not “secondarily liable” in the strictest technical sense of the phrase, the quoted words describe their alleged obligations in relevant practical terms. If it should prevail against plaintiff, the Government, under its probably compulsory policy of" }, { "docid": "674204", "title": "", "text": "Moore, Federal Practice j| 14.04 at p. 501; ¶ 1405 at p. 504. Schwab v. Erie Lackawanna R. Co., supra, at 67. In the instant case, the liability for federal taxes which have not been collected and paid over by Midland-Western can and should be resolved in a single action. In the event the third parties were not joined and plaintiff prevailed, the Government would be obliged to bring separate suits against other alleged responsible persons. Thus, it would serve the purpose of Rule 14 to have the entire claim tried in one proceeding. Secondly, the claims in this case derive from a “group or aggregate of operative facts giving ground or occasion for judicial action.” See 3 Moore, Federal Practice jj 1407, p. 509, p. 511; United States v. Joe Grasso & Son, Inc., supra, 380 F.2d at 751. Here, the evidence and witnesses with respect to the third-party complaint will be substantially the same as the evidence in the plaintiff’s complaint. The same corporation, the same time periods, and the same withholding tax are involved with respect to each complaint. Moreover, common questions of law are also involved. Thus, to try all claims in a single proceeding would prevent a duplication of effort for the courts, thereby serving the interests of judicial economy, convenience and fairness to the parties. Finally, the overwhelming weight of authority in the district courts would permit the joinder of third parties in responsible officer cases. McGee v. United States, (E.D.Pa. November 21, 1972); Abrams v. United States, 52 F.R.D. 578 (S.D.W.Va.1971); Wilkie v. United States, 279 F.Supp. 671 (N.D.Tex.1968); Crompton-Richmond Co., Inc. Factors v. United States, 273 F.Supp. 219 (S.D.N.Y.1967); Dunham v. United States, 42 F.R.D. 169 (D.Conn.1967) Monday v. United States, 12 F.R.Serv. 146 (E.D.Wis.1967); Gardner v. United States, 36 F.R.D. 453 (S.D.N.Y-1964). Accordingly, the motion of third-party defendant Garrett to dismiss the third-party complaint will be denied." } ]

[ { "docid": "22396074", "title": "", "text": "in Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1 (1888). There the Court held that there was no federal common law “which prohibits obstructions and nuisances in navigable rivers.” Id., at 8. Although Willamette involved private parties, the clear implication of the Court’s opinion was that in the absence of specific legislation no party, including the Federal Government, would be empowered to take any action under federal law with respect to such obstructions. The Act was intended to enable the Secretary of War to take such action. See 21 Cong. Rec. 8603, 8605, and 8607 (1890); see also United States v. Pennsylvania Industrial Chemical Corp., 411 U. S. 655, 663-664 (1973); United States v. Standard Oil Co., 384 U. S. 224, 227-229 (1966); United States v. Republic Steel Corp., 362 U. S. 482, 485-488, 499-500 (1960). Congress was not concerned with the rights of individuals. It is not surprising, therefore, that there is no “indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one.” Cort v. Ash, 422 U. S., at 78, 82- 84; Touche Ross & Co. v. Redington, 442 U. S., at 571; Cannon v. University of Chicago, 441 U. S., at 694-703. The Court of Appeals recognized as much: “The legislative history of the Rivers and Harbors Act of 1899 does not reflect a congressional intent either to afford a private remedy or to deny one.” 610 F. 2d, at 588. This silence on the remedy question serves to confirm that in enacting the Act, Congress was concerned not with private rights but with the Federal Government’s ability to respond to obstructions on navigable waterways. As recently emphasized, the focus of the inquiry is on whether Congress intended to create a remedy. Universities Research Assn., Inc. v. Coutu, 450 U. S., at 771-772; Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S., at 23-24; Touche Ross & Co. v. Redington, supra, at 575-576. The federal judiciary will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide. Here consideration of" } ]

[ { "docid": "17662407", "title": "", "text": "Cir.1981) wherein the court expressed the following dicta: [Tjhere is considerable doubt as to whether a private right of action exists under § 17(a) of the 1933 Act. See Woods v. Homes & Structures of Pitts-burg, Kansas, 489 F.Supp. 1270, 1284-88 (D.Kan.1980), where the court reviewed conflicting authorities in detail and came to the conclusion that no private action exists. The Supreme Court has not yet resolved the issue. See Aaron v. Securities Exchange Commission, 446 U.S. 680, 689, 100 S.Ct. 1945, 1951, 64 L.Ed.2d 611 (1980). Our decision today with respect to § 10(b) of the 1934 Act would apply equally to § 17(a) of the 1933 Act, if a private cause of action were assumed to exist under the latter statute. Id. at 689 n. 1. See also In re Storage Technology Corp. Securities Litigation, 630 F.Supp. 1072, 1079 (D.Colo.1986). This court has refused to find an implied right of action under § 17(a) of the 1933 Act. In Noland v. Pickett, C80-0034W slip op. (February 12, 1982), Honorable David K. Winder specifically granted a motion to dismiss a claimed cause of action under § 17(a) of the 1933 Act. After a short discussion of legislative intent under the 1933 Act, Judge Winder concluded: There is nothing on the face of section 17(a) indicating a private right of action for damages, or creating a benefit for an “especial” class of persons. Compare Cannon v. University of Chicago, 441 U.S. 677, 689-94 [99 S.Ct. 1946, 1953-56, 60 L.Ed.2d 560] (1979), with Trans-america Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18-19 [100 S.Ct. 242, 246-47, 62 L.Ed.2d 146] (1979). Nor is there any indication in the legislative history evidencing such an intent; on the contrary, every indication is that private damages were not intended. See SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 867 (2d Cir.1968) (Friendly, J., concurring); McFarland v. Memorex Corp., 493 F.Supp. 631, 652 (N.D.Cal.1980). Therefore the court can only conclude that no private right of action for damages arises under section 17(a) of the 1933 Act.... Id. at 3-4; see also Omicron Indus. v." }, { "docid": "18271522", "title": "", "text": "& Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) and Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979) must be met. In Touche Ross, supra, the Court, in holding that there was no cause of action under § 17(a) of the Securities Exchange Act (which requires brokers to keep whatever records the SEC may require), stated “. . . our task is limited solely to determining whether Congress intended to create the private right of action...” 442 U.S. at 568, 99 S.Ct. at 2485. In the present case, the rules were not promulgated by Congress but rather by the New York Stock Exchange, pursuant to Congressional authorization. Section 6(b) “neither confers rights on private parties nor prescribes any conduct as unlawful”. Touche Ross, supra, at 569, 99 S.Ct. at 2485-86. There is nothing in the legislative history of the Act which even suggests that a private cause of action can be implied under § 6(b). The mere fact that § 6(b) may protect the public does not provide a basis for implying a private cause of action. See Touche, Ross, supra, at 578, 99 S.Ct. at 2490; Transamerica, supra, 444 U.S. at 24, 100 S.Ct. at 249; Jablon v. Dean Witter & Co., 614 F.2d 677, 680-681 (9th Cir. 1980). For those reasons, I hold that there is no private cause of action under § 6(b) of the Securities Exchange Act and that Count XIII must be dismissed. (G) Breaches of Contracts (Counts II and III) The resolution of the dispute regarding the written and alleged oral contracts involves determinations of genuine factual issues. Since that is so, the resolution should be made only after the taking of evidence. Accordingly, defendants’ motions for summary judgment, as they relate to the contract issues, must be denied. IV. Conclusion. The motions for summary judgment, therefore, are allowed in part and denied in part consistent with the reasons set forth in Part III, infra, of the Memorandum and Order. . Due to the Supreme Court’s decision in Transamerica Mortgage Advisors," }, { "docid": "19818619", "title": "", "text": "(1975), neither § 1263 nor § 1274 of the Federal Hazardous Substances Act created an implied right of action. The court then dismissed plaintiff’s seven state law claims, based on product liability, warranty and negligence, finding the exercise of pendent jurisdiction to be inappropriate. Riegel Textile Corp. v. Celanese Corp., 493 F.Supp. 511 (S.D.N.Y. 1980). DISCUSSION A. Introduction This case presents a question of first impression: whether a private right of action should be implied under sections 1263 or 1274 of the Federal Hazardous Substances Act. Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. at 2087 (1975), establishes the criteria which must be examined to determine whether a private remedy is implicit in a statute not expressly providing one: First, is the plaintiff “one of the class for whose especial benefit the statute was enacted,” — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? (Citations omitted.) Recent Supreme Court decisions have stressed that courts should be reluctant to imply private rights of action. See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979); Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977). “[T]he fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person.” Cannon v. University of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979). The Cort factors are not necessarily" }, { "docid": "15474639", "title": "", "text": "Shearson Lehman Bros., Inc., 698 F.Supp. 1078, 1086 (S.D.N.Y.1988) (refusing to recognize civil cause of action under section 15(a)(1)); Bull v. American Bank and Trust Co. of Pa., 641 F.Supp. 62, 65 (E.D.Pa.1986) (dismissing section 15(a)(1) claim because no private right of action recognized); Shotto v. Laub, 632 F.Supp. 516, 518 n. 2 (D.Md.1986) (dismissing section 15(c)(1) claim because no private cause of action recognized); Olsen v. Paine Webber, Jackson & Curtis, Inc., 623 F.Supp. 17, 18 (M.D.Fla.1985) (same). In fact, no court considering the issue since the Supreme Court articulated the test for implying a cause of action in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), has recognized a private cause of action under section 15. This Court agrees with the overwhelming majority of courts which have held that neither section 15(a)(1) nor 15(e)(1) of the Exchange Act provides for a private right of action. As the Supreme Court has made clear, “the fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person.” Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (quoting Cannon v. University of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979)). The issue of whether a statute creates a cause of action, either expressly or by implication, is a matter of statutory construction. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 16, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979). When the statute does not expressly provide for a private remedy, the Court must determine whether there is an indication of Congressional intent to create a private cause of action. Id; Southwest Air Ambulance v. City of Las Cruces, 268 F.3d 1162, 1169 (10th Cir.2001). Section 15 does not expressly provide for any private cause of action. Thus, this Court must determine whether Congress intended to create any private remedy. With respect to section 15(c)(1), the Court finds no Congressional intent to create a private remedy. The Court agrees" }, { "docid": "5384040", "title": "", "text": "private right of action (all agree that there is no express right of action) for the violation of or the failure to enforce exchange rules. Spicer v. Chicago Bd. Options Exchange, Inc., 1990 WL 172712, at *3-17, 1990 U.S. Dist. LEXIS 14469, slip op. at 8-20 (N.D.Ill. Oct. 24, 1990) [hereinafter “Dist. Op.”]. Although several counts against the CBOE and other defendants survived the motion to dismiss, the district court entered final judgment as to the § 6(b) counts under Fed.R.Civ.P. 54(b). We affirm. II. About five years ago, in the context of another lawsuit brought by investors against an exchange and its members, we observed that the whole question of implied private rights of action “is deeply vexed,” Bosco v. Serhant, 836 F.2d 271, 275 (7th Cir.1987), and for good reason. Weighty institutional and prudential concerns, which relate in large part to our role as an Article III body, pull in arguably inconsistent directions. On one hand, they counsel against too quickly recognizing causes of action for which Congress did not expressly provide. See Cannon v. University of Chicago, 441 U.S. 677, 730-49, 99 S.Ct. 1946, 1974-85, 60 L.Ed.2d 560 (1979) (Powell, J., dissenting); George D. Brown, Of Activism and Erie — Implication Doctrine’s Implications for the Nature and Role of the Federal Courts, 69 Iowa L.Rev. 617, 644-49 (1984). Yet, at the same time, courts interpreting statutes are charged with effectuating their underlying intent, which Congress often chooses to convey through vehicles more subtle than statutory text. See Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 18, 100 S.Ct. 242, 246, 62 L.Ed.2d 146 (1979) (intent may appear implicitly in the structure of a statute or the circumstances of its enactment) [hereinafter “TAMA ”]. An additional, and somewhat related, dilemma lies in the fact that divining from silence an intent to create or foreclose private actions, or for that matter an intent to do anything, is admittedly an inexact science. See In re Grabill Corp., 967 F.2d 1152 (7th Cir.1992); Luddington v. Indiana Bell Tel. Co., 966 F.2d 225 (7th Cir.1992); Mozee v. American Commercial Marine Serv." }, { "docid": "8445026", "title": "", "text": "Corp., Bemuth Lembcke Co., Inc., Allied Corporation, Koppers Company, Inc. and Osmose Wood Preserving Co. of America, Inc.’s motions for summary judgment as to Counts VI and IX are granted. It is so ordered. . Since our decision considers evidence presented outside of the pleadings, we treat defendants' motions as motions for summary judgment. Roman v. United States Postal Service, 821 F.2d 382 (7th Cir.1987). . The broad definition of \"hazardous substance\" to include more than wastes appears inconsistent with the narrowing language of § 9607(a)(3). Specifically, how can a manufacturer arrange for the disposal or treatment of anything but wastes? By reading “hazardous wastes” in context, the language can be reconciled. Hazardous substances include, inter alia, \"any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act.\" 42 U.S. C. § 9601(14)(C). This subparagraph specifies a type of hazardous waste, suggesting that \"substance” could mean wastes in a broader nontechnical sense. Many courts discuss CERCLA as if it applies only to hazardous wastes. See, e.g., United States v. Shell Oil Co., 605 F.Supp. 1064 (D.Col.1985). We need not grapple with this semantic distinction since our decision here relies on the provision’s express limitation of liability to those who arrange for the disposal or treatment of a substance, regardless of that substance’s label as a primary product, by-product or waste product. . Hines distinguishes Westinghouse by pointing out that Osmose and the Creosote Defendants knew how Hines disposed of the run-off containing the hazardous substances. This distinction is inconsequential. There is no basis for imposing CERCLA liability on those whose association with a purchaser’s disposal technique goes no further than knowledge of the technique. The crucial inquiry for identifying responsible parties under § 9607(a)(3) is the reason for the transaction in the hazardous substance. . We reject defendants’ contention that a chemical sold for use in a manufacturing process cannot be considered a hazardous substance for purposes of establishing § 9607 liability. The statutory definition of hazardous substance is not so limited, 42 U.S.C. § 9601(14), and the courts have recognized" }, { "docid": "8445006", "title": "", "text": "MEMORANDUM OPINION AND ORDER ASPEN, District Judge: Edward Hines Lumber Company (“Hines”) brought this action to determine who should be held responsible for the costs of removing contaminants from a wood treatment facility in Mena, Arkansas. In this decision, we address defendants Reilly Tar & Chemical Corp., Bernuth Lembcke Co., Inc., Allied Corp. and Koppers Company, Inc. (collectively “Creosote Defendants”) and Osmose Wood Preserving Co. of America, Inc.’s (“Osmose”) motions to dismiss or, alternatively, for summary judgment. For the following reasons, we grant the motions for summary judgment. I Material Undisputed Facts From 1967 to 1978, Hines owned and operated a wood treatment facility in Mena, Arkansas (“Mena site”) at which Hines treated wood with various chemicals including pentachlorophenol (“PCP”) supplied by the Vulcan Materials Company and the Monsanto Company, creosote supplied by the Creosote Defendants and chromated copper arsenate (“CCA”) supplied by Osmose. The Creosote Defendants’ relationship with Hines at the Mena site went no further than manufacturing and selling to Hines the creosote for wood treatment. Osmose’s relationship with Hines was more extensive. Pursuant to an agreement (“Hines-Osmose Agreement”), Osmose advised and consulted with Hines on the selection of the appropriate location for the CCA treatment system, designed, constructed and installed the system at the Mena site, trained personnel to run the system and supplied the CCA for the system. Osmose provided technical information and marketing assistance to Hines and authorized Hines to use the Osmose trademark. Hines exercised sole responsibility for the “operation, maintenance, upkeep and control of its plant or any part of its products with local, State and Federal regulations or requirements or OSMOSE standards.” Hines-Osmose Agreement, ¶ 111(g). Osmose retained the right to “full and immediate access to the plant and to all chemical processes and products located thereon or produced thereby for the purposes of insuring quality control according to OSMOSE standards....” Id., ¶III(i). No Osmose employees attended to the Mena site on a regular basis. Hines stored run-off from the wood treatment process in a holding pond at the site. In March of 1982, the United States Environmental Protection Agency (“EPA”) notified" }, { "docid": "8445008", "title": "", "text": "Hines that the chemicals in the holding pond created a potential environmental risk and identified PCP, creosote and CCA as the offending substances. Hines was later named as a defendant in litigation alleging personal injury and property damage resulting from the Mena site contamination. II Case History Hines brought this action to establish liability for past and future damages caused by the contaminants in the Mena site holding pond. Hines initially filed this action against Vulcan Materials Company. Other defendants were named as third-party defendants and later as direct defendants. Several were voluntarily dismissed from this action. In a previous decision, we dismissed the state law damages counts against all defendants, expressly reserving judgment on the remaining counts. Edward Hines Lumber Co. v. Vulcan Materials Co., 669 F.Supp. 854 (N.D.Ill.1987). In another decision, we entered the Agreed Orders that dismissed with prejudice Vulcan and Monsanto Company. Hines v. Vulcan, No. 85 C 1142, slip op. (N.D.Ill. Dec. 2, 1987) [available on WESTLAW, 1987 WL 27368]. We now address Osmose's and the Creosote Defendants’ motions for summary judgment on the remaining counts, Counts VI and IX. In these counts, Hines seeks a declaratory judgment that the Creosote Defendants and Osmose are liable for those portions of any future liability that Hines may incur “as a result of allegations of environmental harm at the Mena site” that are attributable to the creosote and CCA. Hines states in its responsive pleadings that the future liability to which it refers are response costs (the costs of removing the contaminants from the Mena site) incurred under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S. C. § 9601 et seq. Hines further states that these counts arise under CERCLA or, alternatively, state law. In their motions, defendants contend that the declaratory judgment counts for response costs can be brought only under CERCLA, not state law, and that defendants’ involvement at the Mena site was insufficient to warrant CERCLA liability. III Liability Under CERCLA Under a 1986 amendment to CERCLA, “[a]ny person may seek contribution from any other person who is liable" }, { "docid": "8889151", "title": "", "text": "March, 1989, consistent with the foregoing memorandum, it is ORDERED, that summary judgment is granted in favor of defendants, and plaintiff’s Second Amended Complaint is dismissed with prejudice. The clerk is directed to mark this file closed. . This allegation is an almost verbatim quote of the definition of sexual harassment by the National Advisory Council of Women’s Educational Programs. See Keller, Consensual Amorous Relationships Between Faculty and Students, 15 J.Coll. and Univ.L. 21, 22 (1988). . Plaintiff has a private cause of action, despite the absence of express creation of such by Congress, under Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). The Supreme Court in that instance, and the two lower courts which have considered Title IX claims since then have recognized, as plaintiff has not, that Title IX’s remedies are injunctive and declaratory in nature. See Alexander v. Yale University, 631 F.2d 178 (2d Cir.1980); Moire v. Temple University School of Medicine, 613 F.Supp. 1360 (E.D.Pa.1985) aff’d mem. 800 F.2d 1136 (3d Cir.1986). Following the Supreme Court’s direction that where Congress expressly provides a remedy the courts must be wary of reading others into it, see Transamerica Mortgage Advisors v. Lewis, 444 U.S. 11, 18-19, 100 S.Ct. 242, 246-47, 62 L.Ed.2d 146 (1979), as well as the sound philosophy expressed in the concurring opinion of Justice (now Chief Justice) Rehnquist, joined by Justice Stewart, in Cannon v. University of Chicago, supra, 441 U.S. at 717-18, 99 S.Ct. at 1968-69, we decline plaintiffs invitation to legislate a damages remedy into existence. Plaintiff cannot state a damages claim for her \"lost employment opportunities” under Title IX, even if she had set forth a scintilla of evidence to support her allegations of loss. The amendments to the attorney’s fee statute, 42 U.S.C. § 1988 to include private suits brought to enforce Title IX plainly may not be used as argument for implying an additional remedial scheme. Recognizing this, activist commentators have either invited the judiciary to expand Title IX by fiat, see Schneider, Sexual Harassment and Higher Education, 65 Texas L.R. 525 (1987)," }, { "docid": "9427507", "title": "", "text": "MEMORANDUM OPINION AND ORDER ASPEN, District Judge: This action concerns the potential liability of the defendants Osmose Wood Preserving Company of America, Inc. (“Os-mose”), Bemuth Lembcke (“Bemuth”), Reilly Tar & Chemical Company, Allied Chemical Corporation, USX Corporation and Koppers Company, Inc. (collectively “Reilly”), under state common law negligence and product liability theories as well as under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601-9675 (West 1983 & West Supp. 1987), arising from the sale of certain chemicals to plaintiff Edward Hines Lumber Company (“Hines”) for use at Hines’ wood treating plant in Mena, Arkansas. Currently pending are various motions by the defendants for dismissal of Hines’ complaint. The primary basis for dismissal asserted by the defendants is the statute of limitations, an issue which they have characterized as a relatively simple one which will dispose of all issues in the suit through their summary judgment motions, which we address herein. For the following reasons, the defendants’ summary judgment motions are granted as to the negligence and product liability counts in Hines’ complaint, and we dismiss those counts with prejudice. This suit began in an Illinois state court, where Hines filed its original complaint against Vulcan on December 21, 1984. Hines first sued only Vulcan, seeking recovery for property damage resulting from toxic chemicals sold to Hines by Vulcan. On February 6, 1985, Vulcan filed a petition for removal to this Court based on diversity of citizenship, 28 U.S.C. § 1332 (1982). Subsequently, the other defendants were named as third-party defendants in a third-party complaint filed by Vulcan and as direct defendants in Hines’ amended complaint filed on October 16, 1986. I. UNDISPUTED FACTS From 1967 until 1978, Hines, a Delaware corporation, owned and operated a wood treating facility in Mena, Arkansas (“the Mena site”). The defendants all allegedly sold chemicals to Hines which the latter used at the Mena site in the course of its wood-treatment processing, and it is the use of these chemicals which is alleged to have caused damage to Hines’ property. Vulcan and Monsanto sold pentachlorophe-nol (“penta”), Bemuth and" }, { "docid": "56043", "title": "", "text": "for summary judgment, which the district court granted on the grounds that (1) the URA does not provide a private right of action for monetary damages, and (2) Ms. Ruby, whose actions form the apparent basis of Plaintiffs’ § 1983 claim, does not qualify as a policymaker for the City. Based on this grant of summary judgment, the district court entered final judgment dismissing Plaintiffs’ claims with prejudice, and Plaintiffs timely appealed. DISCUSSION Applying the analysis announced by the Supreme Court in Gonzaga University v. Doe, 536 U.S. 273, 280, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002), we hold that the URA does not provide a private right of action for monetary damages, and accordingly we affirm the district court’s grant of summary judgment in favor of the City. “[T]he fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person.” Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979)). Rather, “[i]n legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action- for noncompliance but rather action by the Federal Government to terminate funds to the State.” Gonzaga, 536 U.S. at 280, 122 S.Ct. 2268 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981)). In enacting a federal statute, Congress may choose to confer individual rights subject to private enforcement, but to do so the statute must “speak with a clear voice” and “unambiguously]” confer those rights. Gonzaga, 536 U.S. at 280, 122 S.Ct. 2268. Thus, “the question whether a statute creates a cause of action, either expressly or by implication, is basically a matter of statutory construction,” Transamerica Mortgage Advisors Inc. v. Lewis, 444 U.S. 11, 15, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979), and “the judicial task is to interpret the statute" }, { "docid": "8445027", "title": "", "text": "United States v. Shell Oil Co., 605 F.Supp. 1064 (D.Col.1985). We need not grapple with this semantic distinction since our decision here relies on the provision’s express limitation of liability to those who arrange for the disposal or treatment of a substance, regardless of that substance’s label as a primary product, by-product or waste product. . Hines distinguishes Westinghouse by pointing out that Osmose and the Creosote Defendants knew how Hines disposed of the run-off containing the hazardous substances. This distinction is inconsequential. There is no basis for imposing CERCLA liability on those whose association with a purchaser’s disposal technique goes no further than knowledge of the technique. The crucial inquiry for identifying responsible parties under § 9607(a)(3) is the reason for the transaction in the hazardous substance. . We reject defendants’ contention that a chemical sold for use in a manufacturing process cannot be considered a hazardous substance for purposes of establishing § 9607 liability. The statutory definition of hazardous substance is not so limited, 42 U.S.C. § 9601(14), and the courts have recognized that primary products may be hazardous substances. See, e.g., Conservation Chemical, 619 F.Supp. at 239. . Hines alternatively asks that we recognize an implied cause of action against chemical manufacturers who are not responsible parties under CERCLA. Hines provides no support for the rather novel contention that courts may imply a cause of action under a statute against a party not in violation of a statute or liable under any of its provisions. In the decisions cited by Hines, the courts determined the existence of a private cause of action against parties in violation of or liable under a statute. Eg., Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. II, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979). See also Jones v. Inmont Corp., 584 F.Supp. 1425 (S.D.Ohio 1984). See generally Cannon v. University of Chicago, 441 U.S. 677, 680 n. 1, 99 S.Ct. 1946, 1949 n. 1, 60 L.Ed.2d 560 (1979). We \"will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide,” California v. Sierra Club," }, { "docid": "18863607", "title": "", "text": "or “federal common law” must exist, independent of general rights emanating from the power of Congress to regulate commerce. Gen’l Comm, of Adj. of Broth, of Loc. Eng. for Mo.-Kan.-Tex. R. Co. v. Mo.-Kan.-Tex. R. Co., 320 U.S. 323, 64 S.Ct. 146, 88 L.Ed. 76 (1943). Defendants’ 12(b)(6) motion to dismiss for failure to state a claim challenges the existence of a private right of action under 42 U.S.C. § 1437 to support § 1337 jurisdiction. No private cause of action is explicitly granted in the 1937 Housing Act, hence the question is whether one can be implied from the statute. Whether a statute creates an implicit private cause of action requires a determination of the intent of Congress. Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979); Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). Although Congressional intent has always been the ultimate test, the Supreme Court has recently changed the scope and emphasis of the analysis. Since 1975, the lower courts have used the following factors cited in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) as a guide to determining whether a private remedy is implicit in an act. First, whether plaintiffs are of the class for whose especial benefit the statute was enacted. Second, is there any indication of a legislative intent to create or deny such a right. Third, is it consistent with the legislative scheme to imply a private cause of action. Finally, is the cause of action one traditionally relegated to state law so that it would be inappropriate to infer a federal cause of action. Now, the emphasis of inquiry appears to have shifted to the first two factors. In Transamerica Mortgage Advisors v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979), Justice Stewart wrote: While some opinions of the Court have placed considerable emphasis upon the desirability of implying private rights of action in order to provide remedies thought to effectuate the purposes of a given statute, e. g.," }, { "docid": "8445024", "title": "", "text": "law that the defendants are not liable under state law. The only state remedy for contribution available to Hines, defendants suggest, arises under the Uniform Contribution Among Tortfeasors Act as adopted by Arkansas. Ark.Stat.Ann. § 34-1001 et seq. (1962). To prevail under that statute, “there must be common liability to an injured party, and the injured party must have a possible remedy against both the party seeking contribution and the party from whom it is sought.” Welter v. Curry, 260 Ark. 287, 298, 539 S.W.2d 264, 271 (Ark.1976). Since the United States, the “injured party” in this case, has no cause of action against Osmose or the Creosote Defendants under CERCLA, Hines, “the party seeking contribution,” cannot recover contribution from those defendants. Defendants correctly interpret and apply Arkansas law and have accordingly satisfied their burden as moving party. The burden then shifts to Hines, the opposing party, to identify evidence in the record that creates a genuine issue of material fact and that if found to be true at trial, establishes the defendants’ liability. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2554-55, 91 L.Ed.2d 265 (1986). Hines has failed to meet this burden. Hines does not identify in its complaint or responsive pleadings the state law remedy that forms the basis of Counts VI and IX, so we presume that the Arkansas Contribution Statute provides the sole remedy. Hines must therefore identify evidence that creates a factual dispute of whether Osmose and the Creosote Defendants would be liable to the United States for any portion of the costs incurred in decontaminating the Mena site. Hines has failed to do so. Hines presents no facts beyond those it sets forth to demonstrate the defendants’ liability under CERCLA. Since we have already established that defendants are not responsible parties under CERCLA, and Hines presents no other basis for defendants’ liability to the United States, Hines has failed to satisfy its burden in opposing summary judgment. Accordingly, we grant summary judgment as to Osmose and the Creosote Defendants’ liability under state law. V Conclusion Remaining defendants Reilly Tar & Chemical" }, { "docid": "8445028", "title": "", "text": "that primary products may be hazardous substances. See, e.g., Conservation Chemical, 619 F.Supp. at 239. . Hines alternatively asks that we recognize an implied cause of action against chemical manufacturers who are not responsible parties under CERCLA. Hines provides no support for the rather novel contention that courts may imply a cause of action under a statute against a party not in violation of a statute or liable under any of its provisions. In the decisions cited by Hines, the courts determined the existence of a private cause of action against parties in violation of or liable under a statute. Eg., Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. II, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979). See also Jones v. Inmont Corp., 584 F.Supp. 1425 (S.D.Ohio 1984). See generally Cannon v. University of Chicago, 441 U.S. 677, 680 n. 1, 99 S.Ct. 1946, 1949 n. 1, 60 L.Ed.2d 560 (1979). We \"will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide,” California v. Sierra Club, 451 U.S. 287, 297, 101 S.Ct. 1775, 1781, 68 L.Ed.2d 101 (1981), especially a remedy against parties not liable under the statute. . Osmose, Reilly Tar & Chemical Corp., Allied Corp., and Koppers Co., Inc. set forth these contentions by adopting Monsanto Co.’s August 11, 1986 motion to dismiss or for summary judgment. Osmose’s Motion to Dismiss or for Summary Judgment at 3; Memorandum of Law in Support of Motion of [certain Creosote Defendants] to Dismiss Plaintiffs Amended Complaint at 4-5. Bemuth Lembcke set forth these contentions by adopting its September 8, 1986 motion to dismiss or for summary judgment. Motion to Dismiss the Amended Complaint or Alternatively for Summary Judgment at 2. . Hines did not dispute defendants’ assumption that Arkansas law governs Hines’ state law claims." }, { "docid": "21900517", "title": "", "text": "cause of action for unauthorized publication of a telephone conversation in violation of 47 U.S.C.A. § 605); Lorentz v. Westinghouse Electric Corp., 472 F.Supp. 946 (W.D.Pa.1979) (implying a private cause of action for violation of the personal attack rule, 47 C.F.R. § 73.123). The case is one of first impression in this Circuit. In determining whether plaintiff has an implied private cause of action, we are guided by a series of Supreme Court cases which outline the role of the courts in inferring private remedies under federal statutes. The collective teaching of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), and its progeny, Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979), is that the task before the Court is a limited one. The Court is not to determine whether allowing a private remedy to redress a statutory violation would be practical or desirable, but only to determine, as a matter of statutory construction, whether Congress intended at the time it enacted the statute to create the private remedy asserted. Cannon, 441 U.S. at 688, 99 S.Ct. at 1953; Transamerica Mortgage Advisors, Inc., 444 U.S. at 15-16, 100 S.Ct. at 245; Rogers v. Frito-Lay, Inc., 611 F.2d 1074, 1078 (5th Cir. 1980), cert. denied, — U.S. —, 101 S.Ct. 246, 66 L.Ed.2d 115 (1980). It is assumed without examination, in light of a broadcaster’s First Amendment rights, that Congress could have provided a damage remedy if it had chosen to do so. The basis for inferring a private right of action from a statute not expressly providing one is a finding by the court that Congress intended to create such a remedy. Touche Ross & Co., 442 U.S. at 568, 99 S.Ct. at 2485; United States v. Capeletti Brothers, Inc., 621 F.2d 1309, 1312 (5th Cir. 1980). “[T]he fact that a federal statute has been violated and" }, { "docid": "18627337", "title": "", "text": "in the Equal Employment Opportunity Commission (“EEOC”), to bring an action for injunctive relief. Bowe v. Judson C. Burns, Inc., 137 F.2d 37 (3d Cir. 1943); Brennan v. Emerald Renovators, Inc., 410 F.Supp. 1057, 1062 (S.D.N.Y.1975); See, Equal Employment Opportunity Commission v. American Telephone & Telegraph Co., 365 F.Supp. 1105, 1121 (E.D.Pa.1973) (Higginbotham, J.), modified 506 F.2d 735 (3d Cir. 1974); Britton v. Grace Line, Inc., 214 F.Supp. 295 (S.D.N.Y.1962). Thus, injunctions will lie against a union for violations of 29 U.S.C. § 206(d)(2), but only if the EEOC, not an employee, is the moving party. In the absence of express authorization of a private action for damages, declaratory or injunctive relief, plaintiffs argue that a private cause of action can be implied from 29 U.S.C. § 206(d)(2) in light of Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). In Cannon, the Supreme Court, employing the four-point test set forth in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), implied a cause of action under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. In determining whether to imply a statutory cause of action, the Supreme Court requires analysis of four factors: 1) whether a plaintiff is one of a class for whose especial benefit the statute was enacted; 2) whether there is a legislative intent to create or deny a remedy; 3) whether it is consistent with the underlying legislative scheme to imply a remedy; and 4) whether the cause of action is traditionally one relegated to state law. The analysis must begin with the language of the statute itself. Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979). We do not question that male employees belong to a class for whose benefit the Act was enacted. However, the underlying legislative scheme precludes a legislative intent that there be a private right of action against a union under this" }, { "docid": "10998370", "title": "", "text": "claims can survive this motion to dismiss only if he can demonstrate that a private right of action has been impliedly created under these rules. Plaintiff has failed to make such a showing. The question of whether a statute creates a private causé of action “either expressly or by implication is basically a matter of statutory construction.” Trans america Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979). See also Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979); Cannon v. University of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 1952, 60 L.Ed.2d 560 (1979); National R.R. Passenger Corp. v. National Assoc, of R.R. Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974); Siebert v. The Conservative Party of New York State, 724 F.2d 334, 337 (2d Cir.1983). As these cases have made clear, the existence of an implied private right of action rises or falls with the question of legislative intent. Absent a finding that the particular statute or rule at issue was promulgated with the intention of creating the right of .action asserted, the court may not imply such a right. See, e.g., Transamerica Mortgage Advisors v. Lewis, supra, 444 U.S. at 15-16, 100 S.Ct. at 245; Touche Ross & Co. v. Redington, supra, 442 U.S. at 568, 99 S.Ct. at 2485; Cannon v. University of Chicago, supra, 441 U.S. 688, 99 S.Ct. 1952. In the instant case, plaintiff has offered this Court no basis upon which to conclude, contrary to substantial authority, that an implied right of action exists under NYSE Rule 405 or the NASD Rule. He has neither cited any authority in support of his contentions, nor addressed any of the arguments and precedents offered by Lehman in favor of the contrary result. In fact, this Court has been able to find no persuasive demonstration of congressional intent to create a federal right of action under the rules at issue. On the contrary, the district court in Colman v. D.H. Blair & Co.," }, { "docid": "17662408", "title": "", "text": "granted a motion to dismiss a claimed cause of action under § 17(a) of the 1933 Act. After a short discussion of legislative intent under the 1933 Act, Judge Winder concluded: There is nothing on the face of section 17(a) indicating a private right of action for damages, or creating a benefit for an “especial” class of persons. Compare Cannon v. University of Chicago, 441 U.S. 677, 689-94 [99 S.Ct. 1946, 1953-56, 60 L.Ed.2d 560] (1979), with Trans-america Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18-19 [100 S.Ct. 242, 246-47, 62 L.Ed.2d 146] (1979). Nor is there any indication in the legislative history evidencing such an intent; on the contrary, every indication is that private damages were not intended. See SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 867 (2d Cir.1968) (Friendly, J., concurring); McFarland v. Memorex Corp., 493 F.Supp. 631, 652 (N.D.Cal.1980). Therefore the court can only conclude that no private right of action for damages arises under section 17(a) of the 1933 Act.... Id. at 3-4; see also Omicron Indus. v. Ihlenburg, C83-1290W slip op. at 2-3 (July 22, 1986) (no private right of action under § 17(a)). We are similarly persuaded that no private right of action exists under § 17(a) of the 1933 Act. Accordingly, defendants’ Motion to Dismiss plaintiff’s third cause of action is granted. This Memorandum Decision and Order will suffice as the court’s final action on this motion; no further Order need be prepared by counsel. . This sale of the business was the first and only distribution/transfer of any stock by either the defendants or the corporation. The shares were transferred subject to a duly affixed restrictive legend and pursuant to a transfer letter in which plaintiff acknowledged the restricted nature of the stock. . By affidavit, plaintiff claims the following telephone calls were made in connection with the sale of the Totally Tan securities: (a) On January 30, 1986, a call was placed by defendant Kuntz's mother to cancel a meeting set for that date. (b) On February 12, 1986, defendant Kuntz called to talk about the purchase and" }, { "docid": "8445025", "title": "", "text": "Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2554-55, 91 L.Ed.2d 265 (1986). Hines has failed to meet this burden. Hines does not identify in its complaint or responsive pleadings the state law remedy that forms the basis of Counts VI and IX, so we presume that the Arkansas Contribution Statute provides the sole remedy. Hines must therefore identify evidence that creates a factual dispute of whether Osmose and the Creosote Defendants would be liable to the United States for any portion of the costs incurred in decontaminating the Mena site. Hines has failed to do so. Hines presents no facts beyond those it sets forth to demonstrate the defendants’ liability under CERCLA. Since we have already established that defendants are not responsible parties under CERCLA, and Hines presents no other basis for defendants’ liability to the United States, Hines has failed to satisfy its burden in opposing summary judgment. Accordingly, we grant summary judgment as to Osmose and the Creosote Defendants’ liability under state law. V Conclusion Remaining defendants Reilly Tar & Chemical Corp., Bemuth Lembcke Co., Inc., Allied Corporation, Koppers Company, Inc. and Osmose Wood Preserving Co. of America, Inc.’s motions for summary judgment as to Counts VI and IX are granted. It is so ordered. . Since our decision considers evidence presented outside of the pleadings, we treat defendants' motions as motions for summary judgment. Roman v. United States Postal Service, 821 F.2d 382 (7th Cir.1987). . The broad definition of \"hazardous substance\" to include more than wastes appears inconsistent with the narrowing language of § 9607(a)(3). Specifically, how can a manufacturer arrange for the disposal or treatment of anything but wastes? By reading “hazardous wastes” in context, the language can be reconciled. Hazardous substances include, inter alia, \"any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act.\" 42 U.S. C. § 9601(14)(C). This subparagraph specifies a type of hazardous waste, suggesting that \"substance” could mean wastes in a broader nontechnical sense. Many courts discuss CERCLA as if it applies only to hazardous wastes. See, e.g.," } ]

[ { "docid": "21445813", "title": "", "text": "CAFFREY, District Judge. This matter came on for hearing before the Court upon plaintiffs’ motion for a preliminary injunction filed pursuant to the provisions of 15 U.S.C.A. § 26. The motion seeks an order enjoining defendant Ford Motor Company from the practice of supplying to its dealers certain of its automobiles constructed without openings in the instrument panels for the installation of radios. There is presently pending before the Court an anti-trust action between the parties. Plaintiffs have been engaged in the manufacture and, through the means of a number of independent distributors, sale of car radios to authorized dealers of the Ford, General Motors, and Chrysler companies. I find that an automobile dealer who wishes to sell a customer an automobile containing a radio has several choices available as to the method of providing the radio. He can order a car from the manufacturer with a factory-installed radio (production method, so-called). He can buy the car without a radio from the manufacturer and later install at his (the dealer’s) place of business a radio manufactured and sold by the maker of the particular car. Or he can buy a car from the manufacturer without a radio and later install a radio made by an independent radio manufacturer, such as Automatic, Soundex, or Tenna (successor to Stromberg Carlson). For many years the manufacturers of the various leading American automobiles, Ford, General Motors, and Chrysler, equipped the instrument panel of their cars with an opening into which either a radio was factory-installed or over which a so-called “knockout plate” was placed. Several knockout plates were introduced in evidence. I find that these are coverings for the opening into which an automobile radio can be fitted through the instrument panel and that these plates may be removed by a competent mechanic in a matter of a minute or two either by unscrewing a nut and bolt combination or by some other simple method. Once this plate is removed a car radio can be installed by a competent mechanic in approximately 15 or 20 minutes. Plaintiffs’ claim for injunction is based upon the" } ]

[ { "docid": "13415438", "title": "", "text": "Laramore, Judge, delivered the opinion of the court: The question in this case is whether radio antennae, designed to be attached to automobile car bodies, are taxable as “automobile parts or accessories” under the manufacturers’ excise tax provisions of the Internal Revenue Code of 1954. 26 TT.S.C. § 4061(b) (Supp. II, 1952 Ed.). Plaintiff paid the eight percent tax for the period October 1,1955 to December 31, 1958, and petitions here for a refund of $138,240.82, with interest. Plaintiff entered the radio antennae business on October 1, 1955, by acquiring the assets of the Insuline Corporation of America. Until May 31, 1957, it continued the business in a wholly-owned subsidiary; thereafter, it liquidated the subsidiary into itself and carried on the business directly. Subsequently, mounting operating losses forced final liquidation on December 31, 1958. For the duration of its proprietorship, plaintiff manufactured and sold three general types of antennae: automobile radio antennae, home radio antennae, and simulated antennae. Our concern is limited to the first. Automobile radio antennae must meet certain requirements to overcome the reception difficulties created by automobile design and use. Thus, automobile antennae must be durable for outside mounting, they must be insulated from the body, and they must be sensitive to receive signals from all directions. Plaintiff designed and manufactured antennae meeting these minimum requirements. Of course, most of its products met other requirements as well; e.g., many were designed for installation on specified automobile models, many had special features such as the ability to telescope or rise and lower automatically, many were made of special metals or available in unusual shapes and colors. In short, plaintiff offered a wide range of automobile radio antennae products to meet both minimum functional requirements and the vagaries of automobile owner taste. It distributed these products through wholesalers who dealt in automobile replacement parts and accessories. In October 1955, when plaintiff entered the radio antennae business, the Internal Eevenue Code of 1954 was in effect. Section 4061 (b) imposed the following tas: There is hereby imposed upon parts or accessories (other than * * * automobile radio and television" }, { "docid": "21445822", "title": "", "text": "complain about Galaxies and Fairlanes. With regard to the question of time necessary to install a car radio at a Ford dealership, I do not credit the testimony of the witness Blotnick, a 59-year-old man called by the plaintiffs as an expert in radio repair, who testified that it took him 1% hours the first time and about 1% hours the second time he installed a car radio in a 1965 Galaxie, without antenna. In rejecting this testimony I have in mind that the Court witnessed a 19-year-old mechanic completely install the radio, speaker, and antenna in 29 minutes. I also have in mind that if the young mechanic’s time was doubled it would still be substantially less than that testified to by the witness Blotnick. Even if it be assumed in plaintiffs’ favor, that the mechanic observed by the Court was unusually skilled, which he did not appear to be, it does not follow that a competent mechanic enjoying more than the one year’s experience the demonstrator had, would require more than 15 or 20 minutes over the 29-minute installation observed at Dario Ford. In short, plaintiffs have failed to prove that the change in the interior of the 1965 Galaxie and Fairlane models has caused any unreasonable or extraordinary increase in the length of time necessary for dealer-installation of a car radio. Other evidence introduced at the hearing indicates that the automobile industry is enjoying a banner and possibly its best year in terms of unit sales, that this increased activity has placed a heavy burden on dealer service facilities in preparing cars for delivery to customers, and that this in turn has caused many dealers to resort to factory-installation of radios and many other accessories in the interest of saving the time of their service personnel. This finding is bolstered by the testimony of the witness Redd, manager of Parts and Services, Research and Analysis Department, Ford Motor Company, who testified that, nationally, Ford dealerships are 30 per cent undermanned in their service departments, and also by the fact that industry figures show that there has been" }, { "docid": "11279981", "title": "", "text": "in the destruction of the plaintiff’s business. Where the economic loss involved would be so great as to threaten destruction of the moving party’s business, a preliminary injuction should be issued to maintain the status quo. Poster Exchange, Inc. v. National Screen Service Corp., 198 F.Supp. 557 (N.D.Ga. 1961), aff’d 305 F.2d 647 (C.A. 5, 1962); Greenspun v. McCarran, 105 F.Supp. 662 (D.Nev. 1952). However, where the loss, as in this case, may be ascertained in money damages, no irreparable injury is shown and refusal to grant a preliminary injunction is proper. Graham v. Triangle Publications, Inc., 344 F.2d 775 (C.A. 3, 1965). In considering the irreparable nature of the injury which may result from denial of preliminary relief the Court can consider whether the plaintiff will get an early trial on the merits. Volk v. Loew’s Inc., 94 F.Supp. 162 (D. Minn. 1950); see also Virginia Airmotive, Ltd. v. Canair Corp., 393 F.2d 126 (C.A. 4, 1968). In the present ease the Court notes that, honoring the desires of both parties, trial has been set to commence on January 6, 1971, less than three months from now. The short duration of time remaining before the trial also appears to militate against a finding of irreparable injury to the plaintiff from a denial of injunctive relief at this time. A case presenting more persuasive evidence than has been presented in the present case in which preliminary injunctive relief was denied is Automatic Radio Mfg. Co. v. Ford Motor Company, 272 F.Supp. 744 (D.Mass. 1967), aff'd 390 F.2d 113 (C.A. 1, 1968), cert. den. 391 U.S. 914, 88 S.Ct. 1807, 20 L.Ed.2d 653 (1968). In dispute was an alleged illegal tying arrangement. In that case the plaintiff, a manufacturer of custom automobile radios, requested a preliminary injunction ordering the defendant, Ford, a major manufacturer of motor vehicles, to supply any of its dealers, who so requested, models of its automobiles with dashboards perforated for radio installation. Ford had adopted a program of supplying only solid dashboards on models not equipped with a factory installed radio. The Court in the Automatic Radio" }, { "docid": "21445821", "title": "", "text": "On the basis of the foregoing, I find that the time allowed by Ford to dealers for installation of car radios in 1965 Galaxies and Fairlanes is less than the time allowed by General Motors to Buick and Chevrolet dealers for installation of radios in 1964 and 1965 Buicks and Chevrolets, both of which models are equipped with the conventional knockout plates. The significance of these allowances lies in the fact that they are obviously considered to represent reasonable times for dealer-installation of car radios by the major manufacturers who allow themselves to be back-charged by their dealers on the basis thereof. In sum, I find that even with the complained-of change in the 1965 Galaxies and Fairlanes, the time required to install an automobile radio at a Ford dealership is less than the time General Motors allows Buick and Chevrolet dealers to install radios in cars with conventional knockout plates. I find it significant that plaintiffs have made no complaint about the time required to install car radios in Chevrolets or Buicks and yet complain about Galaxies and Fairlanes. With regard to the question of time necessary to install a car radio at a Ford dealership, I do not credit the testimony of the witness Blotnick, a 59-year-old man called by the plaintiffs as an expert in radio repair, who testified that it took him 1% hours the first time and about 1% hours the second time he installed a car radio in a 1965 Galaxie, without antenna. In rejecting this testimony I have in mind that the Court witnessed a 19-year-old mechanic completely install the radio, speaker, and antenna in 29 minutes. I also have in mind that if the young mechanic’s time was doubled it would still be substantially less than that testified to by the witness Blotnick. Even if it be assumed in plaintiffs’ favor, that the mechanic observed by the Court was unusually skilled, which he did not appear to be, it does not follow that a competent mechanic enjoying more than the one year’s experience the demonstrator had, would require more than 15 or" }, { "docid": "22429139", "title": "", "text": "COFFIN, Circuit Judge. This is an appeal from a denial of a preliminary injunction sought by a manufacturer of automobile radios, Automatic Radio Mfg. Co., Inc. (Automatic), against Ford Motor Company (Ford), to restore its competitive position in the automobile radio market pending the outcome of a private antitrust suit seeking treble damages and injunctive relief under sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 26, for alleged violations of sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, and section 3 of the Clayton Act, 15 U.S.C. § 14. Automatic is a substantial manufacturer of custom car radios adapted to fit into the dashboards of particular models and makes of automobiles. Its radios are designed for use in most of the models of the major United States automobile manufacturers. Its immediate customers are distributors who resell the radios to new car dealers. In the instant case, its ultimate customers are Ford car dealers. For years its radios and installation kits have been sold to many of these dealers, particularly in the eastern part of the United States, for approximately $10 less than the cost of a Ford radio installed at the factory. Until 1964, each Ford model had the same basic instrument panel whether the car was equipped with a radio or not. If an automobile was ordered without a factory installed radio, the opening for the radio was covered by a “knockout plate”. The dealer could easily remove the plate and, using the accessories contained in kits, install either a Ford radio or one manufactured by appellant or other producers. In the fall of 1964 Ford changed its dashboard styling in two of its models. In cars equipped with factory installed radios a 27 inch wide plastic dashboard cover, with openings for various dashboard gauges and radio knobs, buttons and dial, was used. In cars ordered without radios, the same plastic dashboard cover was used except that it was partly imperforate; it had no openings masked with a “knockout plate” where a radio would otherwise be located. If a dealer" }, { "docid": "4304988", "title": "", "text": "CAFFREY, District Judge. This is an action for treble damages under the antitrust laws in which the complaint alleges violations of Sections 1 and 2 of the Sherman Act and Section 3 of the Clayton Act (15 U.S.C. §§ 1, 2 and 14). The defendant (Ford) has moved for summary judgment in respect of all claims alleged in the amended complaint, in accordance with Rule 56(b) and (c) of the Federal Rules of Civil Procedure, upon the ground that the plaintiffs have no standing to maintain this action. In support of its motion the defendant relies in part upon plaintiffs’ response to request for admissions and in part on affidavits of John M. Hall, of counsel for defendant, and J. M. McBride, Assistant Comptroller of defendant, as well as on certain allegations of the complaint. The defendant contends that it is entitled to such judgment as matter of law because, it says, the plaintiffs have not been and are not persons injured in their business or property within the meaning of Section 4 of the Clayton Act (15 U.S.C. § 15), by any alleged violation of the antitrust laws by the defendant. The motion is based upon claims by defendant that plaintiffs could not have been directly injured because the plaintiffs and the defendant are not and have not been competitors since they sell to different classes of customers. The plaintiffs are Massachusetts corporations engaged in the business of manufacturing and assembling (Automatic Radio Mfg. Co. Inc.), and selling (Automatic Radio Sales, Inc.) car radios, including car radios specially engineered and adapted for installation in automobiles manufactured by the defendant. The defendant Ford is a Delaware corporation engaged in the business of manu factoring and assembling and selling automobiles, and it also sells radios for them. It buys car radios from Bendix Corporation and Motorola, Inc. and sells and ships substantial quantities of them in interstate commerce. Car radios manufactured and assembled by the plaintiff Automatic Radio Mfg. Co. Inc. are shipped from its warehouse to distributors throughout the United States for sale to Ford dealers and others. The plaintiffs" }, { "docid": "22429149", "title": "", "text": "styling and marketing practice which Ford has pursued for the past three and one half years. Affirmed. . A wholly owned sales subsidiary, Automatic Radio Sales, Inc., is also a plaintiff-appellant. . Although the record contains somewhat varying cost estimates, the following table gives an approximate comparison of costs and profits to the dealer when he buys a Ford factory installed radio, installs a Ford radio, and installs an Automatic radio. AUTOMATIC KIT FORD FACTORY FORD KIT INSTALLED -Lots - Radio kits $28.50 1-9 10-99 $42.95 $39.95 100 or more $34.95 $45.45 Installation- — • antenna 1.75 Perforated plate 5. to 7.67 Installation— labor 3. (approx.) 3.00 3.00 3.00 Cost to dealer $36.50 to $39.17 $45.95 $42.95 _ $37.95 $47.20 Cost to customer $58.50 $58.50 $58.50 $58.50 $58.50 Cost to dealer 36.50 to 39.17 45.95 42.95 37.95 47.20 $22.00 to $19.33 $12.55 $15.55 $20.55 Profit to dealer $11.30 . The complaint was filed on April 26, 1963. Thirteen months later, Ford’s motion for summary judgment was denied. Automatic Radio Mfg. Co. v. Ford Motor Co., 35 F.R.D. 198 (D.Mass.1964). In September 1964, Automatic sought a preliminary injunction, which was denied in June 1965. Automatic Radio Mfg. Co. v. Ford Motor Co., 242 F.Supp. 852 (D. Mass.1965). A year and one half later, in February 1967, Automatic sought the preliminary injunction here at issue, which was denied in September 1967. We are, therefore, still dealing with preliminaries after nearly five years of motions, affidavits, briefs, and hearings. . We do not say that benefits to dealers are not in the public interest. Our observation is directed only at the weight to be assigned, in this context, to appellant’s “public interest” contention." }, { "docid": "4304989", "title": "", "text": "Clayton Act (15 U.S.C. § 15), by any alleged violation of the antitrust laws by the defendant. The motion is based upon claims by defendant that plaintiffs could not have been directly injured because the plaintiffs and the defendant are not and have not been competitors since they sell to different classes of customers. The plaintiffs are Massachusetts corporations engaged in the business of manufacturing and assembling (Automatic Radio Mfg. Co. Inc.), and selling (Automatic Radio Sales, Inc.) car radios, including car radios specially engineered and adapted for installation in automobiles manufactured by the defendant. The defendant Ford is a Delaware corporation engaged in the business of manu factoring and assembling and selling automobiles, and it also sells radios for them. It buys car radios from Bendix Corporation and Motorola, Inc. and sells and ships substantial quantities of them in interstate commerce. Car radios manufactured and assembled by the plaintiff Automatic Radio Mfg. Co. Inc. are shipped from its warehouse to distributors throughout the United States for sale to Ford dealers and others. The plaintiffs do not sell and have not sold radios to the defendant’s customers, its franchised dealers; and the defendant does not sell and has not sold radios to any of the distributors or other customers of the plaintiffs. In paragraphs 10 through 16 the complaint alleges certain violations of Sections 1 and 2 of the Sherman Act and of Section 3 of the Clayton Act. The allegations are that through inducement and coercive devices imposed on its authorized dealers by Ford, the product of the plaintiff is being excluded from a portion of the market. The complaint alleges in paragraph 18 that plaintiffs were and are directly injured in their business by reason of the violations of the antitrust laws by the defendant. Basically, the defendant urges that plaintiffs lack standing to maintain this action because they are not directly injured by the alleged violations of the antitrust laws. The defendant reasons that the plaintiffs cannot be found to be directly injured because the parties are not in direct competition with each other inasmuch as they" }, { "docid": "21445823", "title": "", "text": "20 minutes over the 29-minute installation observed at Dario Ford. In short, plaintiffs have failed to prove that the change in the interior of the 1965 Galaxie and Fairlane models has caused any unreasonable or extraordinary increase in the length of time necessary for dealer-installation of a car radio. Other evidence introduced at the hearing indicates that the automobile industry is enjoying a banner and possibly its best year in terms of unit sales, that this increased activity has placed a heavy burden on dealer service facilities in preparing cars for delivery to customers, and that this in turn has caused many dealers to resort to factory-installation of radios and many other accessories in the interest of saving the time of their service personnel. This finding is bolstered by the testimony of the witness Redd, manager of Parts and Services, Research and Analysis Department, Ford Motor Company, who testified that, nationally, Ford dealerships are 30 per cent undermanned in their service departments, and also by the fact that industry figures show that there has been a marked increase in the percentage of power brakes which are factory-installed on the 1965 Ford models despite the fact that the time required for a dealer to install power brakes on 1965 cars is only half the time required to install them in 1964 cars. Also corroborative of the finding that there is no significant causal relationship between the interior changes in the Galaxies and Fairlanes and the increased percentage of cars being sold this year with factory-installed radios, is the fact that as a matter of statistics Ward’s Automotive Reports (referred to by counsel for both parties as the bible of the industry) indicates that many of the automobile lines which contain the conventional knockout plates in their 1965 models nevertheless are being sold to dealers in substantially larger numbers containing factory-installed radios. Thus, it appears from two extracts from Ward’s Automotive Reports, which were introduced into evidence, that the percentage of factory-installation of car radios in the 1965 models through March 31 of this year has increased in very many, if not" }, { "docid": "8527149", "title": "", "text": "to Automatic Radio. Certain testimony crept into the case with reference to the installation of radios in new Ford cars. It appeared that Ford tried to induce dealers to use Motorola car radios which were manufactured by a Ford subsidiary. The dealer, 22 Ford, desired to use radios which were manufactured by another manufacturer, Automatic Radio. Eventually, Ford changed the dashboard of new Ford automobiles so as to make it virtually impossible to install Automatic Radios or any radio other than Motorola. When this testimony began to come in, it appeared that it was going to lead to something concerning an illegal tying arrangement or exclusive dealing or something of that nature. As the testimony developed however it appeared that the plaintiff could not show how this affected its operations and to what extent it might have been damaged by any such conduct. We therefore ordered the testimony stricken and instructed the jury to disregard it. It is the opinion of the court that the admonition to the jury (Tr. 3318) was sufficient to cure this admission of evidence which the plaintiff was unable to follow up. (3) Refusal to Allow Witnesses to Testify as to Conversations with Mr. Callas, deceased. Callas was one of the officials of Ford Motor Company, whose statements were quoted along with those of Mr. Barclay and Iacocca relative to the intention of Ford to dominate the market in 20 metropolitan centers. This testimony was referred to in the court’s charge at 5101-5109. Defendant in its case attempted to introduce evidence of certain people as to conversation they had had with Callas at luncheons and elsewhere indicating a different approach to the attempt to dominate markets by company owned stores. The court sustained objections to this. It is difficult to see that this falls within any exception to a hearsay rule. See Corpus Juris Secundum, Vol. 31(a) Evidence, Section 205 and a host of cases cited therein in Note 77. It is claimed however that such testimony should be used for the purpose of attacking the credibility of Mr. Sehroll who testified to these statements" }, { "docid": "21445820", "title": "", "text": "also include a 5 per cent mechanic’s personal allowance (for personal time not spent on the job), plus a 20 per cent allowance to adjust differences between dealers in equipment, facilities, efficiency, caliber, and training of mechanics. I further find that Mr. Oakes used a stopwatch and timed mechanics at Ford agencies as having installed radios in the 1965 Galaxie and Fairlane models in 8/10ths and 9/10ths of an hour respectively (48 and 54 minutes respectively), actual installation time without an allowance, and that he has timed a mechanic making his first installation in any 1965 car at 8/10ths and 9/10ths of an hour respectively without an allowance. I further find that the manuals issued by General Motors showing the time for installing car radios in 1964 and 1965 Chevrolet models was 1.1 hour and -in Buicks for both years it was 1.3 hours, without allowances. The time provided in the Chevrolet and Buick manuals for installation, with allowances, is 1.4 hours for 1964 and 1965 Chevrolets and 1.6 hours for 1964 and 1965 Buicks. On the basis of the foregoing, I find that the time allowed by Ford to dealers for installation of car radios in 1965 Galaxies and Fairlanes is less than the time allowed by General Motors to Buick and Chevrolet dealers for installation of radios in 1964 and 1965 Buicks and Chevrolets, both of which models are equipped with the conventional knockout plates. The significance of these allowances lies in the fact that they are obviously considered to represent reasonable times for dealer-installation of car radios by the major manufacturers who allow themselves to be back-charged by their dealers on the basis thereof. In sum, I find that even with the complained-of change in the 1965 Galaxies and Fairlanes, the time required to install an automobile radio at a Ford dealership is less than the time General Motors allows Buick and Chevrolet dealers to install radios in cars with conventional knockout plates. I find it significant that plaintiffs have made no complaint about the time required to install car radios in Chevrolets or Buicks and yet" }, { "docid": "22429140", "title": "", "text": "these dealers, particularly in the eastern part of the United States, for approximately $10 less than the cost of a Ford radio installed at the factory. Until 1964, each Ford model had the same basic instrument panel whether the car was equipped with a radio or not. If an automobile was ordered without a factory installed radio, the opening for the radio was covered by a “knockout plate”. The dealer could easily remove the plate and, using the accessories contained in kits, install either a Ford radio or one manufactured by appellant or other producers. In the fall of 1964 Ford changed its dashboard styling in two of its models. In cars equipped with factory installed radios a 27 inch wide plastic dashboard cover, with openings for various dashboard gauges and radio knobs, buttons and dial, was used. In cars ordered without radios, the same plastic dashboard cover was used except that it was partly imperforate; it had no openings masked with a “knockout plate” where a radio would otherwise be located. If a dealer wished to install a Ford radio, the perforated cover, with holes for a radio, would be furnished with the installation kit without extra charge. If a dealer wished to buy a perforated cover separate from a kit, the price ranged from $5 to $7.67. With the introduction of the 1967 Mercury and Deluxe Comet, Ford extended its styling changes and used a different kind of imperforate cover, apparently more difficult to duplicate. While the inclusion of a perforated cover free of extra charge in the Ford installation kit reduced or in some cases eliminated the price advantage previously enjoyed by Automatic, appellant complains that it is further prejudiced by the time and expense necessary to tool up for and produce its own replicas of Ford’s perforated covers. This delay allegedly causes it to miss out on the lucrative first sales months of the automobile year or, in the case of the Mercury and the Comet, to lose sales for the entire year. Automatic complains not only that its sales of radios for Ford cars have" }, { "docid": "4304991", "title": "", "text": "have sold and sell at different levels of the market. Defendant’s principal reliance is placed upon the decision of this court in Snow Crest Beverages, Inc. v. Recipe Foods, Inc., 147 F.Supp. 907, 909 (D.Mass.1956), a case in which Judge Wyzanski ruled that a plaintiff whose business consisted solely of the manufacture and sale of extracts which were used as a major ingredient in the manufacture of beverage syrup was not in competition with a defendant which manufactured and sold syrup, and that consequently that plaintiff, whose extracts did not compete with the defendant’s syrup, was not a person injured in its business or property within the meaning of Section 4 of the Clayton Act. Judge Wyzanski likened the situation, of the plaintiff in Snow Crest to other would-be plaintiffs previously denied standing to sue under Section 4 of the Clayton Act, such as a landlord of a competitor allegedly injured by the defendant, Melrose Realty Co. v. Loew’s Inc., 234 F.2d 518 (3 Cir.1956); a patent licensor who would have received royalties from one of the defendant’s competitors allegedly injured by the defendant’s violations of the antitrust laws, Productive Inventions, Inc. v. Trico Products Corp., 224 F.2d 678 (2 Cir. 1955); employees of an injured competitor, Corey v. Boston Ice Co., 207 F. 465 (D.Mass.1913). For more recent applications of this doctrine see Walker Distributing Co. v. Lucky Lager Brewing Co., 323 F.2d 1 (9 Cir.1963), and Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co., 315 F.2d 564 (7 Cir.1963). The instant case, unlike the Snow Crest ease, involves a fact situation where both plaintiffs and defendant sell the same finished product, automobile radios. It is undisputed that the defendant sells car radios to its authorized Ford dealers and that the plaintiffs have never sold directly to any of defendant’s authorized Ford dealers. It is equally undisputed that plaintiffs sell car radios through approximately fifty authorized distributors who in turn sell and attempt to sell car radios to defendant’s authorized Ford dealers, and it is undisputed that defendant has never sold or attempted to sell car radios to any of" }, { "docid": "21445824", "title": "", "text": "a marked increase in the percentage of power brakes which are factory-installed on the 1965 Ford models despite the fact that the time required for a dealer to install power brakes on 1965 cars is only half the time required to install them in 1964 cars. Also corroborative of the finding that there is no significant causal relationship between the interior changes in the Galaxies and Fairlanes and the increased percentage of cars being sold this year with factory-installed radios, is the fact that as a matter of statistics Ward’s Automotive Reports (referred to by counsel for both parties as the bible of the industry) indicates that many of the automobile lines which contain the conventional knockout plates in their 1965 models nevertheless are being sold to dealers in substantially larger numbers containing factory-installed radios. Thus, it appears from two extracts from Ward’s Automotive Reports, which were introduced into evidence, that the percentage of factory-installation of car radios in the 1965 models through March 31 of this year has increased in very many, if not all, of the major makes of automobiles which are delivered equipped with the conventional knockout plate. Ford Falcon is up from 48% to 59.8% factory-installed; Mustang up from 77.8 to 79.6% ; Mercury from 76.6 to 83.9%; and Comet from 53.2 to 61.8%. Turning to the General Motors line, it appears that Chevrolet is up from 56.7 to 70%; Chevelle up from 57.0 to 67.6%; Chevie II from 43.5 to 55.6%; Corvair from 57.8 to 69.3%; and Pontiac, Tempest, Oldsmobile, F-85, Buick, and Buick Special are all up a few percentage points. In the more expensive lines for both 1964 and 1965, factory installation of radios for Cadillac is 99.4%, and for Lincoln and Thunderbird 100%. Returning to car lines competitive with Ford, from 1964 to 1965 Plymouth is up from 56.8 to 74.7 for Fury, 58.7 for Belvedere, and 77.1 for Barracuda. Valiant is up slightly. Dodge Dart is up from 51.1 to 61%, Chrysler is up from 77.7 to 89.3%, and the top of the Chrysler line, Imperial, is up from 98.8 to" }, { "docid": "13815615", "title": "", "text": "KNIGHT, District Judge. This is a suit for infringement of the patent to Edward L. Barrett No. 1,924,082, issued to plaintiff as assignee on August 28, 1933, on application filed January 3, 1933, claimed to cover a vibrator used in a “B” battery eliminator for radio receiving sets. Title is admitted. The manufacture and sale of certain of the accused devices are also admitted. The issues raised are validity and' infringement of the patent and whether punitive damages should be awarded. Plaintiff is a manufacturer of radio apparatus and supplies, including vibrators claimed to be made in accordance with the patent in suit. The defendant is a subsidiary of General Motors Company, and manufactures and sells, among other items, “B” eliminator vibrators for use in automobile radio receivers. Automobile radio receiving sets require that electrical current be supplied to them at two different voltages. These two supplies of current are commonly' referred to as “A” and “B” supplies. The “A” supply is a low voltage current, and for this purpose a low voltage source may be either alternating or direct current. For the “B” supply however a source of comparatively high voltage direct current of between 180 and 250 volts must be had. In an automobile as well as in a house radio set where only battery current is available, the user of a radio set, before the introduction of the so-called vibrator, was compelled to buy separate batteries for the two separate voltages. Until recent years several methods were used to supply the second voltage. One method was the use of a separate set of batteries. Objections to this method are obvious. The batteries were expensive and required frequent renewal. They were bulky and heavy, and were impractical for use in the limited space available for installation in automobiles. Another form of supply unit was the motor generator, in which current from the car battery was used to operate a small motor to operate a rotating electric motor. It, likewise, was expensive to construct, bulky and heavy. It was inefficient and imposed a heavy drain on the storage battery." }, { "docid": "22429148", "title": "", "text": "ratified this approach in Haverhill Gazette Co. v. Union Leader Corp., 333 F.2d 798, 804-806, n. 16 (1st Cir.), cert. denied, 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343 (1964). See generally Private Treble Damage Antitrust Suits: Measure of Damages for Destruction of All or Part of a Business, 80 Harv.L.Rev. 1566, 1572-74, 1583-84 (1967). In the meantime, we note that there is no danger of Automatic’s demise. Its overall sales, profits, and number of distributors have increased. While such a posture does not negate the possibility that Ford has deprived appellant of lost profits or has caused losses in its business with Ford dealers, it is relevant to the question whether ultimate monetary compensation is likely to be an adequate remedy. In conclusion, while we do not mean to forejudge the substantial and novel question involving disputed evidence of motivation and causation of Ford’s increase and Automatic’s decline in sales, we do not feel so compelled by the case made on the affidavits and exhibits as to require, pending trial, cessation of the styling and marketing practice which Ford has pursued for the past three and one half years. Affirmed. . A wholly owned sales subsidiary, Automatic Radio Sales, Inc., is also a plaintiff-appellant. . Although the record contains somewhat varying cost estimates, the following table gives an approximate comparison of costs and profits to the dealer when he buys a Ford factory installed radio, installs a Ford radio, and installs an Automatic radio. AUTOMATIC KIT FORD FACTORY FORD KIT INSTALLED -Lots - Radio kits $28.50 1-9 10-99 $42.95 $39.95 100 or more $34.95 $45.45 Installation- — • antenna 1.75 Perforated plate 5. to 7.67 Installation— labor 3. (approx.) 3.00 3.00 3.00 Cost to dealer $36.50 to $39.17 $45.95 $42.95 _ $37.95 $47.20 Cost to customer $58.50 $58.50 $58.50 $58.50 $58.50 Cost to dealer 36.50 to 39.17 45.95 42.95 37.95 47.20 $22.00 to $19.33 $12.55 $15.55 $20.55 Profit to dealer $11.30 . The complaint was filed on April 26, 1963. Thirteen months later, Ford’s motion for summary judgment was denied. Automatic Radio Mfg. Co. v. Ford Motor Co.," }, { "docid": "8527148", "title": "", "text": "or directors of Ford Motor Company but the court did rule that they qualified as “managing agents”. The persons called were all persons in some position of authority for the defendant Ford Motor Company in charge of certain phases of the business at least in the Pittsburgh area. The best discussion of what is a managing agent who may be called for cross examination is contained in Skogen v. Dow Chemical Co., 375 F.2d 692 (8th Cir. 1967). We are taught by the decision in that ease not to be too technical or literal in our approach to determinations under this .Rule and the Rule should be applied liberally to reach the demands of justice. Technicians and scientists may be called where they are the only persons with knowledge of the subject matter. The question is whether the witness’ interests are identified with those of his principal and whether they act with superior authority with reference to the subject matter in a litigation. Applying these rules, we see no error. (2) Admission of testimony as to Automatic Radio. Certain testimony crept into the case with reference to the installation of radios in new Ford cars. It appeared that Ford tried to induce dealers to use Motorola car radios which were manufactured by a Ford subsidiary. The dealer, 22 Ford, desired to use radios which were manufactured by another manufacturer, Automatic Radio. Eventually, Ford changed the dashboard of new Ford automobiles so as to make it virtually impossible to install Automatic Radios or any radio other than Motorola. When this testimony began to come in, it appeared that it was going to lead to something concerning an illegal tying arrangement or exclusive dealing or something of that nature. As the testimony developed however it appeared that the plaintiff could not show how this affected its operations and to what extent it might have been damaged by any such conduct. We therefore ordered the testimony stricken and instructed the jury to disregard it. It is the opinion of the court that the admonition to the jury (Tr. 3318) was sufficient to cure" }, { "docid": "11279982", "title": "", "text": "set to commence on January 6, 1971, less than three months from now. The short duration of time remaining before the trial also appears to militate against a finding of irreparable injury to the plaintiff from a denial of injunctive relief at this time. A case presenting more persuasive evidence than has been presented in the present case in which preliminary injunctive relief was denied is Automatic Radio Mfg. Co. v. Ford Motor Company, 272 F.Supp. 744 (D.Mass. 1967), aff'd 390 F.2d 113 (C.A. 1, 1968), cert. den. 391 U.S. 914, 88 S.Ct. 1807, 20 L.Ed.2d 653 (1968). In dispute was an alleged illegal tying arrangement. In that case the plaintiff, a manufacturer of custom automobile radios, requested a preliminary injunction ordering the defendant, Ford, a major manufacturer of motor vehicles, to supply any of its dealers, who so requested, models of its automobiles with dashboards perforated for radio installation. Ford had adopted a program of supplying only solid dashboards on models not equipped with a factory installed radio. The Court in the Automatic Radio case noted the extension of the dashboard covers to other models, the increase in the plaintiff’s monetary losses and the bankruptcy of one of the other competitors in the field. In spite of this the Court found that money damages would adequately compensate the plaintiff for any loss of sales or good will caused by any illegal conduct of the defendant. For this reason no irreparable injury was found and no preliminary injunction was granted. The present case has produced less cogent reasons why injunctive relief should be granted at this time. Because any loss of profits caused by the defendant’s certificate program may be recovered in this action and because no showing has been made that the plaintiff’s business will be in danger of being destroyed before trial on the merits, this Court holds that the plaintiff has failed to demonstrate that irreparable injury, justifying the issuance of a preliminary injunction, has been shown. In addition to the reasons stated supra the Court finds additional reasons why the defendant should not be ordered to" }, { "docid": "22429142", "title": "", "text": "been cut in half, and its profits on these sales converted into losses, but also that it has lost its good will as a reliable full line custom radio supplier. It further alleges damage to the consuming public in the erosion of the competition it has hitherto contributed. The injunction sought by Automatic would require Ford, upon request of its dealers, to deliver automobiles without radios but with perforated dashboard covers and to issue order forms to provide for the ordering of automobiles so equipped. The district court found (1) that Automatic did not establish a causal relationship between Ford’s dashboard changes and its own declining sales; (2) that it did not demonstrate that adequate monetary compensation would be impossible or extraordinarily difficult; (3) that the relief requested might prove “nugatory” or ineffective in achieving any relief; and (4) that supervision of Ford’s 7,200 dealers might render enforcement of a decree too difficult. It concluded that the circumstances did not justify the mandatory form of decree requested and that the existence of an illegal tying arrangement had ..not-been established. It said nothing as to alleged Sherman Act violations. Automatic, in prosecuting this appeal, bears a heavy burden. It must show either a clear error of law or an abuse of discretion by the district court in denying the injunction. Bowling Mach., Inc. v. First Nat’l Bank of Boston, 283 F.2d 39, 43 (1st Cir. 1960). More specifically, appellant must show error or abuse of discretion in refusals to find (1) that Automatic had demonstrated a danger of immediate irreparable harm absent such injunctive relief, 15 U.S.C. § 26; (2) that Automatic had shown a probability that it would prevail on the merits, Imperial Chem. Indus. Ltd. v. National Distillers & Chem. Corp., 354 F.2d 459, 461 (2d Cir. 1965), but see Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953); and (3) that a decree requiring some affirmative action by appellee was justified, Joseph Bancroft & Sons Co. v. Shelley Knitting Mills, Inc., 268 F.2d 569, 574 (3d Cir. 1959). This case has long been" }, { "docid": "22429141", "title": "", "text": "wished to install a Ford radio, the perforated cover, with holes for a radio, would be furnished with the installation kit without extra charge. If a dealer wished to buy a perforated cover separate from a kit, the price ranged from $5 to $7.67. With the introduction of the 1967 Mercury and Deluxe Comet, Ford extended its styling changes and used a different kind of imperforate cover, apparently more difficult to duplicate. While the inclusion of a perforated cover free of extra charge in the Ford installation kit reduced or in some cases eliminated the price advantage previously enjoyed by Automatic, appellant complains that it is further prejudiced by the time and expense necessary to tool up for and produce its own replicas of Ford’s perforated covers. This delay allegedly causes it to miss out on the lucrative first sales months of the automobile year or, in the case of the Mercury and the Comet, to lose sales for the entire year. Automatic complains not only that its sales of radios for Ford cars have been cut in half, and its profits on these sales converted into losses, but also that it has lost its good will as a reliable full line custom radio supplier. It further alleges damage to the consuming public in the erosion of the competition it has hitherto contributed. The injunction sought by Automatic would require Ford, upon request of its dealers, to deliver automobiles without radios but with perforated dashboard covers and to issue order forms to provide for the ordering of automobiles so equipped. The district court found (1) that Automatic did not establish a causal relationship between Ford’s dashboard changes and its own declining sales; (2) that it did not demonstrate that adequate monetary compensation would be impossible or extraordinarily difficult; (3) that the relief requested might prove “nugatory” or ineffective in achieving any relief; and (4) that supervision of Ford’s 7,200 dealers might render enforcement of a decree too difficult. It concluded that the circumstances did not justify the mandatory form of decree requested and that the existence of an illegal tying" } ]

[ { "docid": "257354", "title": "", "text": "Shapiro v. Thompson, 1969, 394 U.S. 618, 641-642, 89 S.Ct. 1322, 1335, 22 L.Ed.2d 600, 619; Bolling v. Sharpe, 1954, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884. In upholding the constitutionality of Title 42, U.S.C. § 416(h)(3)(B), I would follow the majority opinion of the three-judge statutory court in Jimenez et al. v. Richardson, 1973, N.D.Ill., 353 F.Supp. 1356 rather than follow Judge Fairchild’s dissent as the-majority does. See also Watts v. Veneman, D.C.Cir. 1973, 476 F.2d 529 and its holding in a similar context: “The entire thrust of the Social Security laws relevant to dependents is to provide benefits to those who were most likely to have relied upon the deceased for their support. In light of this overriding purpose, it is well-established that Social Security benefits are not accrued property rights. One’s ability to receive benefits is not dependent solely upon the biological relationship between the decedent and his children, but also upon the probability that the children were dependent for support upon the deceased. Congress in enacting the Social Security laws made various judgments about the probability that children are dependent. For example, it seems more logical that illegitimates would be dependent upon their father if he has recognized them, or if in fact he is contributing to their support. The incorporation of a state’s intestacy laws for purposes of determining eli gibility is in furtherance of this scheme. If an illegitimate child may not inherit, then the child’s support following the father’s death is less likely to be dependent upon what was received upon the deceased’s death than if the child could receive property following the wage earner’s demise. It must be remembered that the Social Security laws do not exclude all il-legitimates from eligibility for payments. In this case, for example, the children of decedent Jones were and are fully eligible for support. Rather, the laws are reasonably designed to disqualify a class of illegitimates who are less likely, as a class, to possess the requisite biological or legal relationship to or economic dependency on the wage earner.” (Footnotes omitted) ." } ]

[ { "docid": "20798923", "title": "", "text": "S.Ct. 1209, 20 L.Ed.2d 138 (1968); Fowler v. Gage, 301 F.2d 775, 778 (1962); Poe v. Menghini, 339 F.Supp. 986, 996 (D.C.Kan.1971). To excise the dependency requirement from § 416(h) (3) (C) (ii) would completely alter the purpose, scope and operation of the Social Security Act. Yet if this provision were struck down in its entirety, plaintiff’s claim would be completely barred. . While it is true the benefits in Gregory Norton’s ease will never be used if not for him, such would not always be the case, for the maximum benefits are frequently exhausted without all eligible children receiving a full entitlement. See, e. g., Griffin v. Richardson, 346 F.Supp. 1226 (D.Md.1972), affirmed, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 (1973); Davis v. Richardson, 342 F.Supp. 588 (D.Conn.1972), affirmed, 409 U.S. 1069, 93 S.Ct. 678, 34 L.Ed.2d 659 (1973). Although it may not be inequitable or uncharitable to permit Gregory Norton to receive the benefits in preference to their lapsing, for the court to do so would, because of the class action aspect of the case, if not by stare decisis alone, lay the groundwork for future inequities. . In fact, in every lower court and Supreme Court case where impermissible discrimination against illegitimates was invalidated, with the exception of Gomez v. Perez, 409 U.S. 535. 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), the illegitimates were either found or assumed by the court to be actually dependent. The Gomez case is exceptional only because it dealt with an illegitimate child’s right to become dependent." }, { "docid": "10258248", "title": "", "text": "the certainty with which paternity might be proved. I believe this exclusion of a class of dependent children from social security benefits effected by 42 U.S.C. § 416(h)(2) and (3) to be constitutionally impermissible discrimination. Recent decisions of the Supreme Court make it clear that statutory compensation schemes may not, in awarding benefits, prefer one class of dependent children over another according to their status of birth. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Richardson v. Davis, 409 U.S. 678, 93 S.Ct. 678, 34 L.Ed.2d 659 (1972), affirming Davis v. Richardson, 342 F.Supp. 588 (1972); Richardson v. Griffin, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 (1972), affirming Griffin v. Richardson, 346 F.Supp. 1226 (D.Md., 1972). Significantly, the Court was not unmindful .in these cases that children born out of wedlock presented difficult problems of proof as to actual dependency. In Weber, the Court indicated that would respect a state’s method of determining the genuineness of individual claims. However, the Court made it clear that once dependency was established, the Constitution required that all dependents— whether legitimate or illegitimate — must be treated equally. 406 U.S. at 175, 92 S.Ct. 1400. In a very recent decision invalidating state discrimination against illegitimate children in a system designed to provide for the needs of children generally, the Supreme Court said: “We recognize the lurking problems with respect to proof of paternity. Those problems are not to be lightly brushed aside, but neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination.” Gomez v. Perez, - U.S. -, 93 S.Ct. 872, 875, 35 L.Ed.2d 56, 1973. The sole justification offered for the total exclusion of a class of dependent children is that there may reasonably be thought to be a greater likelihood of plausible spurious claims among appli cants born after the event which triggers entitlement of an alleged father to benefits. While I would agree that the need to guard against fraudulent claims is surely a valid legislative goal, I cannot agree that a total" }, { "docid": "20798898", "title": "", "text": "Security Act set up a class of beneficiaries eligible for benefits but who were arbitrarily denied full participation rights. They pointed to the absence of proof problems resulting from the need of the § 416(h)(3) children to qualify initially and to the strong probability of actual dependency which must have been demonstrated to meet the requirements of § 416(h)(3). The courts discounted the government’s argument that § 403(a) promoted family relationships and discouraged illegitimacy and found that § 403(a) denied due process of law. The last Supreme Court decision instructive on this question was Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973). Texas, while granting legitimate children a judicially enforceable right to support from their fathers, denied the same to illegitimates. For this reason, the Texas courts denied the plaintiff’s suit for support, although plaintiff had established paternity to the court’s satisfaction. Juxtaposing the right afforded legitimate children with the denial of that right to illegitimate children, the court found an “unmistakeable” violation of equal protection rights. In the court’s words: Under these decisions, a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally. We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because her natural father has not married her mother. For a State to do so is “illogical and unjust.” 409 U.S. at 818, 93 S.Ct. at 875. While recognizing the “lurking problems with respect to proof of paternity” and admitting that they “are not to be lightly brushed aside,” the court held that “neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination.” Other Supreme Court cases, although not directly concerned with illegitimacy, have dealt with the problem of discrimination in social welfare legislation. The general principle established by these decisions is that invidious discrimination which is not rationally related to the statute’s purpose is impermissible. United States Dept." }, { "docid": "22379981", "title": "", "text": "67 (1965). B Applying these principles, we think that the statutory classifications challenged here are justified as reasonable empirical judgments that are consistent with a design to qualify entitlement to benefits upon a child’s dependency at the time of the parent’s death. To begin with, we note that the statutory scheme is significantly different from the provisions confronted in cases in which the Court has invalidated legislative discriminations among children on the basis of legitimacy. See Gomez v. Perez, 409 U. S. 535 (1973); New Jersey Welfare Rights Org. v. Cahill, 411 U. S. 619 (1973); Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972); Levy v. Louisiana, 391 U. S. 68 (1968). These differences render those cases of little assistance to appellees. It could not have been fairly argued, with respect to any of the statutes struck down in those cases, that the legitimacy of the child was simply taken as an indication of dependency, or of some other valid ground of qualification. Under all but one of the statutes, not only was the legitimate child automatically entitled to benefits, but an illegitimate child was denied benefits solely and finally on the basis of illegitimacy, and regardless of any demonstration of dependency or other legitimate factor. See also Griffin v. Richardson, 346 F. Supp. 1226 (Md.), summarily aff’d, 409 U. S. 1069 (1972); Davis v. Richardson, 342 F. Supp. 588 (Conn.), summarily aff’d, 409 U. S. 1069 (1972). In Weber v. Aetna Casualty & Surety Co., supra, the sole partial exception, the statutory scheme provided for a child’s equal recovery under a workmen’s compensation plan in the event of the death of the father, not only if the child was dependent, but also only if the dependent child was legitimate. 406 U. S., at 173-174, and n. 12. Jimenez v. Weinberger, supra, invalidating discrimination among afterbom illegitimate children as to entitlement to a child’s disability benefits under the Social Security Act, is similarly distinguishable. Under the somewhat related statutory matrix considered there, legitimate children and those capable of inheriting personal property under state intestacy law, and" }, { "docid": "20798903", "title": "", "text": "Act is founded on actual dependency. Davis v. Richardson, 342 F.Supp. 588 (D.Conn.), affirmed, 409 U.S. 1069, 93 S.Ct. 678, 34 L.Ed.2d 659 (1972); Jimenez v. Richardson, 353 F.Supp. 1356 (N.D.Ill.1973); Watts v. Veneman, 334 F.Supp. 482 (D.D.C.1971), affirmed in part, reversed in part on other grounds, 476 F.2d 529 (D.C.Cir.1973). Moreover, the mere fact that the provision plaintiff challenges requires proof of actual dependency belies the conclusion that the Act is directed to potential dependency. The whole thrust of § 416(h)(3)(C) (ii) is that of determining both the biological connection and the dependency required by the Act for benefits. The provision requires some proof sufficient to the Secretary of actual paternity. It then requires proof that the illegitimate child whose paternity is proven establish either that he or she actually was supported by the wage earner on the date of his death or, alternatively, that he or she lived with the wage earner on the date of his death, the presumption being that a wage earner’s children who live with him are supported by him. Those children who prove § 416(h)(3)(C) (ii)’s dual elements satisfy the Social Security Act’s prerequisites of being the wage earner’s child and dependent upon him, and. if otherwise qualified, they share equally with all other qualified dependent children of the deceased wage earner. A statute can treat illegitimate children differently than legitimate children as long as the distinction is based upon rational grounds. Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971); cf. Weber v. Aetna Casualty Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Glona v. American Guarantee Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968). It is not invidious discrimination to require § 416(h) (3) (C)(ii) children to establish the dual elements of paternity and dependency when such is not required of legitimates and those illegitimates qualifying under § 416(h)(2)(B) or § 416(h)(3)(C)(i). The parentage of legitimate children is not in issue and it is clearly rational to presume" }, { "docid": "20798897", "title": "", "text": "on, is of crucial importance to this present ease. The next Supreme Court decisions on illegitimacy came in summary affirmances of two three judge court cases declaring unconstitutional § 403(a) of the Social Security Act as a denial of Fifth Amendment due process. Davis v. Richardson, 342 F.Supp. 588 (D.Conn.), affirmed, 409 U.S. 1069, 93 S.Ct. 678, 34 L.Ed.2d 659 (1972); Griffin v. Richardson, 346 F.Supp. 1226 (D.Md.), affirmed, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 (1972). See also, Morris v. Richardson, 346 F.Supp. 494 (N.D.Ga.1972), vacated on other grounds, 409 U.S. 464, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973); Maracle v. Richardson, 348 F.Supp. 234 (S.D.N.Y.1972); Williams v. Richardson, 347 F.Supp. 544 (W.D.N.C.1972). Section 403(a) of the Social Security Act limited the benefits § 416(h)(3) children received to those that remained only after other qualifying children received a full share out of a maximum family allowance. Both Davis and Griffin found this discrimination to lack a rational relationship to the purpose of the Social Security Act. The courts noted that the Social Security Act set up a class of beneficiaries eligible for benefits but who were arbitrarily denied full participation rights. They pointed to the absence of proof problems resulting from the need of the § 416(h)(3) children to qualify initially and to the strong probability of actual dependency which must have been demonstrated to meet the requirements of § 416(h)(3). The courts discounted the government’s argument that § 403(a) promoted family relationships and discouraged illegitimacy and found that § 403(a) denied due process of law. The last Supreme Court decision instructive on this question was Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973). Texas, while granting legitimate children a judicially enforceable right to support from their fathers, denied the same to illegitimates. For this reason, the Texas courts denied the plaintiff’s suit for support, although plaintiff had established paternity to the court’s satisfaction. Juxtaposing the right afforded legitimate children with the denial of that right to illegitimate children, the court found an “unmistakeable” violation of equal protection rights. In the court’s" }, { "docid": "21968017", "title": "", "text": "old daughter, Kimberly Frost, who is not eligible for Social Security benefits. . The reduction was said to be in compliance with the United States Supreme Court decision in Richardson v. Griffin, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 (1972), which found that it was an invidious form of discrimination to deny illegitimate children, who are otherwise qualified, the right to equally partake in the distribution of Social Security benefits with their legitimate siblings. . Since a family maximum is provided for under the Social Security Act and the benefits distributed subsequent to the Richardson decision had to be reapportioned equally among children of the wage earner, regardless of a child’s legitimacy, legitimate children who had previously collected the entire benefit would have to suffer a downward adjustment in their benefits to accommodate the newly eligible children. . Although it is not clear from the pleadings, it would seem that the “protest” stage of the Social Security Administration’s procedure was by-passed, or what was termed “reconsideration” was in actuality a “protest” under Section T 310 of the Social Security Administration’s Claim Manual. . Even this purported antagonism has been obviated by the Administrative Law Judge’s ruling that the claimants are in fact the children of the wage earner. . See Escalera v. New York City Housing Auth., 425 F.2d 853, 867 (2d Cir.), cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970). . See, e. g., Steinberg v. Fusari, 364 F.Supp. 922, 928 (D.Conn.1973) ; Torres v. New York State Dep’t of Labor, 318 F.Supp. 1313 (S.D.N.Y.1970) ; Kelly v. Wyman, 294 F.Supp. 887 (S.D.N.Y.1968), aff’d sub nom. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) ; Gatling v. Butler, 52 F.R.D. 389 (D.Conn.1971). . See, e. g., Jenkins v. United Gas Corp., 400 F.2d 28, 33 (5th Cir. 1968) ; Cypress v. Newport News General & Nonsect. Hosp. Ass’n, 375 F.2d 648, 657-658 (4th Cir. 1967) ; Knowles v. Butz, 358 F.Supp. 228 (N.D.Cal.1973) ; Thomas v. Clarke, 54 F.R. D. 245, 252 (D.Minn.1971) ; Grow v. California Dep’t" }, { "docid": "22546448", "title": "", "text": "the disputed statutory provision as § 12, we will continue to refer to it that way. Ill. Rev. Stat. c. 3, § 2-1 (b) (1976). There is some dispute over the status of Jessie Trimble in this litigation. It has been argued that she is in the case only as the next friend of her daughter. As the question is relevant only to the claim of sex discrimination against the mothers of illegitimate children, an issue we do not reach, we need not resolve the dispute. App. 8. Id., at 14. See n. 1, supra. See n. 2, supra. For purposes of its decision, the court assumed that the children had been acknowledged. There is no mention of a prior adjudication of paternity. App. 54-56. Not presented here is the appellants’ contention below that § 12 discriminates on the basis of race because of its alleged disproportionate impact on Negroes. This case represents the 12th time since 1968 that we have considered the constitutionality of alleged discrimination on the basis of illegitimacy. The previous decisions are as follows: Mathews v. Lucas, 427 U. S. 495 (1976); Beaty v. Weinberger, 478 F. 2d 300 (CA5 1973), summarily aff’d, 418 U. S. 901 (1974); Jimenez v. Weinberger, 417 U. S. 628 (1974); New Jersey Welfare Rights Org. v. Cahill, 411 U. S. 619 (1973); Griffin v. Richardson, 346 F. Supp. 1226 (Md.), summarily aff’d, 409 U. S. 1069 (1972); Davis v. Richardson, 342 F. Supp. 588 (Conn.), summarily aff’d, 409 U. S. 1069 (1972); Gomez v. Perez, 409 U. S. 535 (1973); Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972); Labine v. Vincent, 401 U. S. 532 (1971); Glona v. American Guarantee & Liability Ins. Co., 391 U. S. 73 (1968); Levy v. Louisiana, 391 U. S. 68 (1968). See cases cited n. 11, supra. Labine v. Vincent, supra, is difficult to place m the pattern of this Court’s equal protection decisions, and subsequent cases have limited its force as a precedent. In Weber v. Aetna Casualty & Surety Co., supra, we found in Labine a recognition that" }, { "docid": "20798922", "title": "", "text": "535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973). This legislative history does not, from this court’s 'reading, establish that the Social Security Act is based on potential, rather than actual, dependency. Rather, the report is descriptive of the Act’s effect. . Other arbitrary lines having nothing to do with illegitimacy are also perforce drawn in defining benefit entitlement consistent with the Act’s purpose. For instance, a 19-year-old who was not a full time student or disabled, although perhaps dependent, would not be eligible for benefits. 42 U.S.C. § 402(d) (1) (B). Nor would a 16-year-old married child of the wage earner, no matter how dependent, be able to obtain child’s insurance benefits. 42 U.S.C. § 402(d)(1)(B). . Were the court inclined to agree with plaintiff, the relief requested presents practical problems of its own. A court can excise part of an unconstitutional statutory provision only when the remainder will not alter the purpose, scope or operation of the statute in a way the legislature never intended. United States v. Jackson, 390 U.S. 570, 585, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968); Fowler v. Gage, 301 F.2d 775, 778 (1962); Poe v. Menghini, 339 F.Supp. 986, 996 (D.C.Kan.1971). To excise the dependency requirement from § 416(h) (3) (C) (ii) would completely alter the purpose, scope and operation of the Social Security Act. Yet if this provision were struck down in its entirety, plaintiff’s claim would be completely barred. . While it is true the benefits in Gregory Norton’s ease will never be used if not for him, such would not always be the case, for the maximum benefits are frequently exhausted without all eligible children receiving a full entitlement. See, e. g., Griffin v. Richardson, 346 F.Supp. 1226 (D.Md.1972), affirmed, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 (1973); Davis v. Richardson, 342 F.Supp. 588 (D.Conn.1972), affirmed, 409 U.S. 1069, 93 S.Ct. 678, 34 L.Ed.2d 659 (1973). Although it may not be inequitable or uncharitable to permit Gregory Norton to receive the benefits in preference to their lapsing, for the court to do so would, because of the class action" }, { "docid": "10258247", "title": "", "text": "the discrimination in this notably different context. . The practical difficulties of proof in these situations have not escaped judicial attention. See e. g., Jerry Vogel Music Co. v. Edward B. Marks Music Corp., 425 F.2d 834, 836 n. 4 (2d Cir. 1969). FAIRCHILD, Circuit Judge (dissenting). I respectfully dissent from the dismissal of the claims of Eugenio and Alicia Jimenez (the children born after Ramon’s disability began). Legitimate children born after the beginning of disability, and otherwise qualified, would receive benefits, as would children born before the beginning of disability, whether legitimate or illegitimate. But no matter how clearly it can be shown that Eugenio and Alicia are the dependent children of Ramon, the statute excludes them from benefits which it grants to legitimate children otherwise similarly situated. I realize that a child who is unable to establish paternity with the certainty we accord to a child born to a married mother may properly be required to supply proof achieving a particular level of certainty, but this statutory exclusion is absolute, without regard to the certainty with which paternity might be proved. I believe this exclusion of a class of dependent children from social security benefits effected by 42 U.S.C. § 416(h)(2) and (3) to be constitutionally impermissible discrimination. Recent decisions of the Supreme Court make it clear that statutory compensation schemes may not, in awarding benefits, prefer one class of dependent children over another according to their status of birth. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Richardson v. Davis, 409 U.S. 678, 93 S.Ct. 678, 34 L.Ed.2d 659 (1972), affirming Davis v. Richardson, 342 F.Supp. 588 (1972); Richardson v. Griffin, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 (1972), affirming Griffin v. Richardson, 346 F.Supp. 1226 (D.Md., 1972). Significantly, the Court was not unmindful .in these cases that children born out of wedlock presented difficult problems of proof as to actual dependency. In Weber, the Court indicated that would respect a state’s method of determining the genuineness of individual claims. However, the Court made it clear" }, { "docid": "20798899", "title": "", "text": "words: Under these decisions, a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally. We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because her natural father has not married her mother. For a State to do so is “illogical and unjust.” 409 U.S. at 818, 93 S.Ct. at 875. While recognizing the “lurking problems with respect to proof of paternity” and admitting that they “are not to be lightly brushed aside,” the court held that “neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination.” Other Supreme Court cases, although not directly concerned with illegitimacy, have dealt with the problem of discrimination in social welfare legislation. The general principle established by these decisions is that invidious discrimination which is not rationally related to the statute’s purpose is impermissible. United States Dept. of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973); United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973). However, the cases recognize also that social welfare legislation cannot be expected to be surgically precise in its classification and the existence of some discrimination incidental to the statute’s goal and the means used to achieve it will not make the statute constitutionally infirm under either the Fifth or Fourteenth Amendments. Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972); Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). What the Court stated in Dandridge, supra at 485, 90 S.Ct. at 1161, in regard to equal protection: In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis,” it does" }, { "docid": "16014023", "title": "", "text": "who are legitimate. Although apparently conceding the correctness of this position, the United States District Court for the District of New Jersey, sitting as a three-judge court, upheld the statutory scheme on the grqund that it was designed “to preserve and strengthen family life.” 349 F. Supp. 491, 496 (1972). Confronted with similar arguments in the past, we have specifically declared that: “The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual — as well as an unjust — way of deterring the parent.” Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 175 (1972). Thus, in Weber we held that under the Equal Protection Clause a State may not exclude illegitimate children from sharing equally with other children in the recovery of workmen’s compensation benefits for the death of their parent. Similarly, in Levy v. Louisiana, 391 U. S. 68 (1968), we held that a State may not create a right of action in favor of children for the wrongful death of a parent and' exclude illegitimate children from the benefit of such a right. And only this Term, in Gomez v. Perez, 409 U. S. 535 (1973), we held that once a State posits a judicially enforceable right on behalf of children to needed support from their natural father, there is no constitutionally sufficient justification for denying such an essential right to illegitimate children. See also Davis v. Richardson, 342 F. Supp. 588 (Conn.), aff’d, 409 U. S. 1069 (1972); Griffin v. Richardson, 346 F. Supp. 1226 (Md.), aff’d, 409 U. S. 1069 (1972). Those decisions compel the conclusion that appellants’ claim of the denial of equal protection must be sustained, for there can be no doubt that the" }, { "docid": "10258243", "title": "", "text": "of a few fraudulent claims. They do not dispute the fact that the prevention of such abuse is a valid reason to discriminate, Hagler v. Finch, supra, but rather assert that there are less restrictive means of accomplishing this objective. However, even if such measures existed, their use is not constitutionally mandated under traditional notions of equal protection. Moreover, although plaintiffs assert that more restrictive regulations and internal administrative procedures could reduce such claims, they have not told us just how the Social Security Administration is to detect a collusive paternity suit or fraudulent acknowledgment of paternity. Surely the parties to the collusion, who are in pari delicto, have little incentive to come forward and confess the error of their ways. And it would truly be the exceptional father who, having sired a child out of wedlock, would subsequently come forward, acknowledge his real paternity, and seek to have his child removed from the rolls of public welfare. In sum, it must be remembered that plaintiffs bear the burden of proving § 416(h)(3)(B) to be an irrational means of preventing spurious claims. At best they have merely asserted that there are better ways to do so. That these plaintiffs may in fact be the children of Ramon Jimenez, Sr. suggests that it might have been more benevolent for Congress to allow them to share in these benefits. However, the question before us is one of congressional power and not wisdom. Having found § 416(h)(3)(B) to be rational we cannot second guess congressional wisdom even as applied to these particular facts. Since neither this nor any other court should alter a legislative judgment until convinced that Congress lacks the power to do what it has done, § 416(h)(3)(B) should be considered a valid exercise of legislative judgment until there exists convincing proof to the contrary. Case dismissed. . Griffin v. Richardson, 346 F.Supp. 1226 (D.Md.1972), aff’d, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 (1972) ; Davis v. Richardson, 342 F.Supp. 588 (D.Conn.1972), aff’d, 409 U.S. 1069, 92 S.Ct. 678, 34 L.Ed.2d 659 (1972). Accord, Maracle v. Richardson, 348 F.Supp." }, { "docid": "20798896", "title": "", "text": "to actual dependents and accepted the need to draw arbitrary lines in response to problems of proof. As the court wrote: Finally, we are mindful that States have frequently drawn arbitrary lines in workmen’s compensation and wrongful death statutes to facilitate potentially difficult problems of proof. Nothing in our decision would impose on state court systems a greater burden in this regard. By limiting recovery to dependents of the deceased, Louisiana substantially lessens the possible problems of locating illegitimate children and of determining uncertain claims of parenthood. Our decision fully respects Louisiana’s choice on this matter. It will not expand claimants for workmen’s compensation beyond those in a direct blood and dependency relationship with the deceased and avoids altogether diffuse questions of affection and affinity which pose difficult probative problems. Our ruling requires equality of treatment between two classes of persons the genuineness of whose claims the State might in any event be required to determine. 406 U.S. at 174, 92 S.Ct. at 1406. The court’s view on this point, as will be related further on, is of crucial importance to this present ease. The next Supreme Court decisions on illegitimacy came in summary affirmances of two three judge court cases declaring unconstitutional § 403(a) of the Social Security Act as a denial of Fifth Amendment due process. Davis v. Richardson, 342 F.Supp. 588 (D.Conn.), affirmed, 409 U.S. 1069, 93 S.Ct. 678, 34 L.Ed.2d 659 (1972); Griffin v. Richardson, 346 F.Supp. 1226 (D.Md.), affirmed, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 (1972). See also, Morris v. Richardson, 346 F.Supp. 494 (N.D.Ga.1972), vacated on other grounds, 409 U.S. 464, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973); Maracle v. Richardson, 348 F.Supp. 234 (S.D.N.Y.1972); Williams v. Richardson, 347 F.Supp. 544 (W.D.N.C.1972). Section 403(a) of the Social Security Act limited the benefits § 416(h)(3) children received to those that remained only after other qualifying children received a full share out of a maximum family allowance. Both Davis and Griffin found this discrimination to lack a rational relationship to the purpose of the Social Security Act. The courts noted that the Social" }, { "docid": "14232084", "title": "", "text": "of available funds and resources. Thus, the Court quoted extensively from its prior decisions in Flemming v. Nester, 363 U.S. 603, 611, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (I960). Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). Richardson v. Belcher, 404 U.S. 78, 81 [92 S.Ct. 254, 30 L.Ed.2d 231] (1971) and Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974). Consistent with its emphasis that the claim in Salfi was distinguishable because social welfare legislation was involved, the Court declined to follow Stanley and LaFleur on the ground that, unlike the claims asserted in those cases, Salfi involved: “a noncontractual claim to receive funds from the public treasury [which] enjoys no constitutionally protected status, Dandridge v. Williams, supra, though of course Congress may not invidiously discriminate among such claimants on the basis of a ‘bare congressional desire to harm a politically unpopular group,’ United States Dept. of Agriculture v. Moreno, 413 U.S. 528 [534, 93 S.Ct. 2821, 2826, 37 L.Ed.2d 782] (1973), or on the basis of criteria which bear no rational relation to a legitimate legislative goal. Jimenez v. Weinberger, 417 U.S. 628 [636, 94 S.Ct. 2496, 2501, 41 L.Ed.2d 363] (1974); United States Dept. of Agriculture v. Murry, 413 U.S. 508 [513-514, 93 S.Ct. 2832, 2835, 37 L.Ed.2d 767] (1973).” 422 U.S. at 772, 95 S.Ct. at 2470. The Court distinguished Vlandis on the ground that “the Social Security Act does not purport to speak in terms of the bona fides of the parties to a marriage, but then make plainly relevant evidence of such bona fides inadmissible.” 422 U.S. at 772, 95 5. Ct. at 2470. I find some difficulty in so easily distinguishing Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974), wherein the Court declared unconstitutional a provision of the Social Security Act which, in effect, precluded an illegitimate child born after the onset of the parent’s disability, from obtaining disability benefits, unless the child were eligible under other provisions of the Act regarding legitimization, inheritance or defective marriage ceremonies." }, { "docid": "22379982", "title": "", "text": "only was the legitimate child automatically entitled to benefits, but an illegitimate child was denied benefits solely and finally on the basis of illegitimacy, and regardless of any demonstration of dependency or other legitimate factor. See also Griffin v. Richardson, 346 F. Supp. 1226 (Md.), summarily aff’d, 409 U. S. 1069 (1972); Davis v. Richardson, 342 F. Supp. 588 (Conn.), summarily aff’d, 409 U. S. 1069 (1972). In Weber v. Aetna Casualty & Surety Co., supra, the sole partial exception, the statutory scheme provided for a child’s equal recovery under a workmen’s compensation plan in the event of the death of the father, not only if the child was dependent, but also only if the dependent child was legitimate. 406 U. S., at 173-174, and n. 12. Jimenez v. Weinberger, supra, invalidating discrimination among afterbom illegitimate children as to entitlement to a child’s disability benefits under the Social Security Act, is similarly distinguishable. Under the somewhat related statutory matrix considered there, legitimate children and those capable of inheriting personal property under state intestacy law, and those illegitimate solely on account of a nonobvious defect in their parents’ marriage, were eligible for benefits, even if they were born after the onset of the father’s disability. Other (illegitimate) afterborn children were conclusively denied any benefits, regardless of any showing of dependency. The Court held the discrimination among illegitimate afterborn children impermissible, rejecting the Secretary’s claim that the classification was based upon considerations regarding trustworthy proof of dependency, because it could not accept the assertion: “[T]he blanket and conclusive exclusion of appellants’ subclass of illegitimates is reasonably related to the prevention of spurious claims [of dependency] . Assuming that the appellants are in fact dependent on the claimant [father], it would not serve the purposes of the Act to conclusively deny them an opportunity to establish their dependency and their right to insurance benefits.” 417 U. S., at 636. Hence, it was held that “to conclusively deny one subclass benefits presumptively available to the other denies the former the equal protection of the laws guaranteed by the due process provision of the Fifth" }, { "docid": "10258244", "title": "", "text": "an irrational means of preventing spurious claims. At best they have merely asserted that there are better ways to do so. That these plaintiffs may in fact be the children of Ramon Jimenez, Sr. suggests that it might have been more benevolent for Congress to allow them to share in these benefits. However, the question before us is one of congressional power and not wisdom. Having found § 416(h)(3)(B) to be rational we cannot second guess congressional wisdom even as applied to these particular facts. Since neither this nor any other court should alter a legislative judgment until convinced that Congress lacks the power to do what it has done, § 416(h)(3)(B) should be considered a valid exercise of legislative judgment until there exists convincing proof to the contrary. Case dismissed. . Griffin v. Richardson, 346 F.Supp. 1226 (D.Md.1972), aff’d, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 660 (1972) ; Davis v. Richardson, 342 F.Supp. 588 (D.Conn.1972), aff’d, 409 U.S. 1069, 92 S.Ct. 678, 34 L.Ed.2d 659 (1972). Accord, Maracle v. Richardson, 348 F.Supp. 234 (W.D.N.Y.1972) ; Morris v. Richardson, 346 F.Supp. 494 (N.D.Ga.1972). . Prior to the Supreme Court's disposition of the cases cited in note 1, supra, the Social Security Administration stated that it would refrain from following § 403(a) pending appeal of the decisions declaring it unconstitutional. SSA Program. Circular No. 199, September 29, 1972. . This exclusion was consistently upheld by the courts, although the precise question of its constitutionality does not appear to have been raised. JH. g., Warrenberger v. Folsom, 239 F.2d 846 (3d Cir. 1956) ; Robles v. Folsom, 239 F.2d 562 (2d Cir. 1956), cert. denied, 353 U.S. 960, 77 S.Ct. 869, 1 L.Ea.2a 911 (1957). . As the Court states in Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1961) : “In judging the permissibility of the cut-off provisions of § 202 (n) [of the Social . Security Act] . . ., it is not within our authority to determine whether the Congressional judgment expressed in that section is sound or equitable, or whether" }, { "docid": "23390527", "title": "", "text": "not contemplated by the 1965 legislation, where the inclusion of illegitimate children would raise the total above the statutory maximum. The 1968 amendment provided that when the total benefits would exceed the maximum, any reduction should first occur in the benefits payable to children made eligible by the 1965 amendments; the effect of this was to exclude these illegitimate children altogether when the benefits payable to the widow and other children reached the maximum. This provision was held unconstitutional in Griffin v. Richardson, 346 F.Supp. 1226 (D.Md.) (three-judge court), summarily affirmed per curiam, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 600 (1972), on the ground that the discriminatory classification in it served no legitimate state interest and was thus violative of the due process rights of the class of illegitimate children who were plaintiffs in that suit. This decision made it necessary for the Social Security Administration (SSA) to revise its procedures, under authority of 42 U.S.C. § 405(a), for handling cases where the addition of children claiming to be entitled to benefits under the 1965 amendments would result in exceeding the statutory maximum, the validity of which has not been questioned. Cf. Dandridge v. Williams, 397 U.S. 471, 483-87, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). The revised procedures, incorporated into the SSA Claims Manual, were designed to permit the reworking of all claims “as though the [1968] provision had never been enacted,” Claims Manual T305, and to provide all beneficiaries whose benefits were going to be reduced with “a detailed explanation of the reason for the reduction.” Id. T308(b). Beneficiaries whose benefits were to be reduced must be notified prior to the reduction, id. T315, by an SSA Reviewing Office, which would process the award for the newly entitled illegitimate child but would “diary” the case for 45 days and not effectuate a benefit check reduction until the operating month after the processing of any protest filed within that period. Id. T310(c). The notice explained that a “recent court decision” required equality of treatment for all children of a wage earner who died fully insured and that," }, { "docid": "14232085", "title": "", "text": "the basis of criteria which bear no rational relation to a legitimate legislative goal. Jimenez v. Weinberger, 417 U.S. 628 [636, 94 S.Ct. 2496, 2501, 41 L.Ed.2d 363] (1974); United States Dept. of Agriculture v. Murry, 413 U.S. 508 [513-514, 93 S.Ct. 2832, 2835, 37 L.Ed.2d 767] (1973).” 422 U.S. at 772, 95 S.Ct. at 2470. The Court distinguished Vlandis on the ground that “the Social Security Act does not purport to speak in terms of the bona fides of the parties to a marriage, but then make plainly relevant evidence of such bona fides inadmissible.” 422 U.S. at 772, 95 5. Ct. at 2470. I find some difficulty in so easily distinguishing Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974), wherein the Court declared unconstitutional a provision of the Social Security Act which, in effect, precluded an illegitimate child born after the onset of the parent’s disability, from obtaining disability benefits, unless the child were eligible under other provisions of the Act regarding legitimization, inheritance or defective marriage ceremonies. The Jimenez Court concluded that the purpose of the statutory scheme was to prevent spurious claims and insure that only those actually entitled to disability benefits received such payments. The Court, distinguishing Dandridge on the ground that the purpose of the legislative provision in Jimenez did not concern the allocation of finite resources, gave considerable weight to the fact that the classification created an irrebuttable presumption, noting that the dilemma of noneligible illegitimate children “is compounded by the fact that the statute denies them any opportunity to prove dependency in order to establish their ‘claim’ to support and, hence, their right to eligibility.” 417 U.S. at 635, 94 S.Ct. at 2501. In this respect, the Court noted that: “It does not follow, however, that the blanket and conclusive exclusion of appellants’ subclass of illegitimates is reasonably related to the prevention of spurious claims. Assuming that the appellants are in fact dependent on the claimants, it would not serve the purposes of the Act to conclusively deny them an opportunity to establish their dependency and their" }, { "docid": "23390526", "title": "", "text": "family exceed a specified maximum, 42 U.S.C. § 403(a), set out in the table accompanying 42 U.S.C. § 415(a). Prior to 1965 the only children eligible for benefits pursuant to 42 U.S.C. §§ 402(d)(1) and (d)(2) were children who could inherit from the decedent pursuant to applicable state law or whose parents had participated in a ceremony which would have resulted in a valid marriage except for one of two specified legal impediments. 42 U.S.C. §§ 416(h)(2)(A) & (B), 402(d)(3). In 1965 Congress amended the Act to include other illegitimate children, Social Security Amendments of 1965, Pub.L.No.89—97, § 339(a), 79 Stat. 409, where, inter alia, the decedent wage earner, before his death, acknowledged paternity in writing, was decreed by a court to have been the father, or was ordered by a court to contribute support to the child because of paternity. This was codified as 42 U.S.C. § 416 (h)(3)(C)(i). Congress again amended the Act in 1968, Social Security Amendments of 1967, Pub.L.No.90—248, § 163(a)(1), 81 Stat. 872, to deal with the situation, ap parently not contemplated by the 1965 legislation, where the inclusion of illegitimate children would raise the total above the statutory maximum. The 1968 amendment provided that when the total benefits would exceed the maximum, any reduction should first occur in the benefits payable to children made eligible by the 1965 amendments; the effect of this was to exclude these illegitimate children altogether when the benefits payable to the widow and other children reached the maximum. This provision was held unconstitutional in Griffin v. Richardson, 346 F.Supp. 1226 (D.Md.) (three-judge court), summarily affirmed per curiam, 409 U.S. 1069, 93 S.Ct. 689, 34 L.Ed.2d 600 (1972), on the ground that the discriminatory classification in it served no legitimate state interest and was thus violative of the due process rights of the class of illegitimate children who were plaintiffs in that suit. This decision made it necessary for the Social Security Administration (SSA) to revise its procedures, under authority of 42 U.S.C. § 405(a), for handling cases where the addition of children claiming to be entitled to benefits under" } ]

[ { "docid": "19628948", "title": "", "text": "82 L.Ed.2d 556 (1984)(\"personal\"); Valley Forge, supra, at 472, 102 S.Ct. 752(standing requires that the plaintiff \" 'personally has suffered some actual or threatened injury' \"); United States v. Richardson, 418 U.S. 166, 177, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974)(not \"undifferentiated\"); Public Citizen, Inc. v. National Hwy. Traffic Safety Admin., 489 F.3d 1279, 1292-1293 (C.A.D.C.2007)(collecting cases). Particularization is necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be \"concrete.\" Under the Ninth Circuit's analysis, however, that independent requirement was elided. As previously noted, the Ninth Circuit concluded that Robins' complaint alleges \"concrete, de facto \" injuries for essentially two reasons. 742 F.3d, at 413. First, the court noted that Robins \"alleges that Spokeo violated his statutory rights, not just the statutory rights of other people.\" Ibid. Second, the court wrote that \"Robins's personal interests in the handling of his credit information are individualized rather than collective .\" Ibid . (emphasis added). Both of these observations concern particularization, not concreteness. We have made it clear time and time again that an injury in fact must be both concrete and particularized. See, e.g., Susan B. Anthony List v. Driehaus, 573 U.S. ----, ----, 134 S.Ct. 2334, 2341-2342, 189 L.Ed.2d 246 (2014); Summers, supra, at 493, 129 S.Ct. 1142; Sprint Communications Co. v. APCC Services, Inc., 554 U.S. 269, 274, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008); Massachusetts v. EPA, 549 U.S. 497, 517, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). A \"concrete\" injury must be \"de facto \"; that is, it must actually exist. See Black's Law Dictionary 479 (9th ed. 2009). When we have used the adjective \"concrete,\" we have meant to convey the usual meaning of the term-\"real,\" and not \"abstract.\" Webster's Third New International Dictionary 472 (1971); Random House Dictionary of the English Language 305 (1967). Concreteness, therefore, is quite different from particularization. 2 \"Concrete\" is not, however, necessarily synonymous with \"tangible.\" Although tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete. See, e.g., Pleasant Grove" } ]

[ { "docid": "12677518", "title": "", "text": "federal judicial power to certain ‘cases’ and ‘controversies,’ and the ‘irreducible constitutional minimum’ of standing contains three elements.” Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The first of these three elements is that the plaintiff must have suffered an “ ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 698, 145 L.Ed.2d 610 (2000). The injury must also be “fairly traceable to the challenged action of the defendant” and redressable through judicial action. Id. In May 2016, the Supreme Court decided Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016). In Spokeo, the Supreme Court explained that to establish Article III standing, a plaintiff must show not only that he or she was personally affected by the alleged wrongdoing, i.e., a “particularized” injury, but also that he or she suffered a “concrete” injury—i.e., a “de facto” or “real” injury that “actually exist[s].” 136 S.Ct. at 1548. The Spokeo Court explained that “‘[c]oncrete’ is not... necessarily synonymous with ‘tangible,’ ” observing that while “tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete.” Id. at 1549. To identify whether an intangible injury is concrete, “both history and the judgment of Congress play important roles.” Id. at 1549. The Spokeo Court explained: [I]t is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts. In addition, because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important. Id. (citations omitted). In other words, the Spokeo Court instructed that while a bare procedural statutory violation is insufficient to confer standing, a statutory violation that invokes" }, { "docid": "16142199", "title": "", "text": "556 U.S. at 678-79, 129 S.Ct. 1937; Blum v. Holder, 744 F.3d 790, 795 (1st Cir.), cert. denied, — U.S. —, 135 S.Ct. 477, 190 L.Ed.2d 358 (2014). With this backdrop in place, we divide our ensuing discussion into four segments. First, we turn to the allegations made by the plaintiffs in support of the acceleration and contaminant claims. Second, we discuss the unique situation of two of the named plaintiffs — James Mooney and his wife, Laura Kurtz-Mooney — whose allegations do satisfy the prerequisites for standing. Third, we address the plaintiffs’ contention that the district court should have permitted further amendment of the complaints. Finally, we explain why the district court must modify the dismissal of the acceleration and contaminant claims to operate without prejudice. A. Standing. Standing doctrine assures respect for the Constitution’s limitation of “[t]he judicial Power” to “Cases” and “Controversies.” U.S. Const, art. III, § 2, cl. 1. At bottom, that doctrine reflects “concern about the proper — and properly limited — role of the courts in a democratic society.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The heartland of constitutional standing is composed of the familiar amalgam of injury in fact, causation, and redressability. See Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130. In our view, the case at hand hinges on the presence or absence of a plausibly pleaded injury in fact. Such an injury “must be both ‘concrete and particularized and actual or imminent, not conjectural or hypothetical.’ ” Van Wagner Bos., 770 F.3d at 37 (quoting Susan B. Anthony List v. Driehaus, — U.S. —, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014)). The Supreme Court recently has emphasized that concreteness and particularization are distinct requirements. An injury is concrete only if it “actually exist[s].” Spokeo, Inc. v. Robins, — U.S. —, 136 S.Ct. 1540, 1543, 194 L.Ed.2d 635 (2016). For example, when an alleged injury is nothing more than “a bare procedural violation,” there may be no cognizable harm to the plaintiff and thus no concreteness. Id. at 1549-50. The particularization requirement is" }, { "docid": "5001841", "title": "", "text": "that the proposed class meets the four requirements of Rule 23(a) — numer-osity, commonality, typicality, and adequacy of representation — and at least one of the branches of Rule 23(b).” Mulvania v. Sheriff of Rock Island Cnty., 850 F.3d 849, 858-59 (7th Cir. 2017). Here, Neeley seeks certification under Rule 23(b)(3), which requires that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superi- or to .other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). III. Discussion PRA opposes class certification for three reasons: (1) Neeley lacks standing, (2) Neeley is not an adequate class representative, and (3) the predominance element is not met. The court addresses each argument in turn. PRA first argues that Neeley does not have standing to pursue this case at all, much less as a class action. Standing “is a short-hand term for the right to seek judicial relief for an alleged injury.” Simic v. City of Chi., 851 F.3d 734, 738 (7th Cir. 2017) (citing Susan B. Anthony List v. Driehaus, — U.S. -, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014)). “To have standing, a plaintiff must allege and ultimately show: (1) an . injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision.” Id. (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). Here, PRA maintains Neeley cannot shov? that he has suffered an “injury ,in fact.” It cites to the Supreme Court’s recent decision in Spokeo, Inc. v. Robins, where the Court concluded,. “Article III standing requires a concrete injury even in the context of a statutory violation. For that reason, [a plaintiff] could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.” — U.S. —, 136 S.Ct. 1540, 1549, 194 L.Ed.2d 635 (2016). PRA" }, { "docid": "12997438", "title": "", "text": "Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Plaintiff, as the party invoking federal jurisdiction, has the burden of demonstrating each element. FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), “Where, as here, a case is at the pleading stage, the plaintiff must ‘clearly ... allege facts demonstrating’- each element.” Spokeo, 136 S.Ct. at 1547 (quoting Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). The existence of Article III standing often turns on the injury-in-fact element. Spokeo, 136 S.Ct. at 1547. To establish injury-in-fact, “a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Id. at 1548 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). “For an injury to be particularized, it must affect the plaintiff in a personal and individual way.” Id. (internal citations omitted). To be “concrete,”' an injury must be “real” as opposed to “abstract,” but it need not be “tangible.” Id. at 1548-49. In Spokeo, the Supreme Court recently addressed whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm and who, therefore, could not otherwise invoke the jurisdiction of a federal court by authorizing a private right of action based on a bare violation of & federal statute. 136 S.Ct. 1540. The Spokeo Court held that “Article III standing requires a concrete injury even in the context of a statutory violation.” Id. at 1549. As the Supreme Court explained, “Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Id. In other words, Congress’ decision that there should be a legal remedy for the violation of a particular statute does not mean that" }, { "docid": "7953526", "title": "", "text": "S.Ct. 2505, 91 L.Ed.2d 202 (1986); accord Apotex Inc. v Acorda Therapeutics, Inc., 823 F.3d 51, 59 (2d Cir. 2016). The moving party bears the initial burden of informing the court of the basis for the summary judgment motion and identifying those portions of the record that demonstrate the absence of a genuine dispute as to any material fact. Fed. R. Civ. P. 56(c)(1); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Courts must construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in the non-moving party’s favor. Young v. United Parcel Serv., Inc., — U.S. -, 135 S.Ct. 1338, 1347, 191 L.Ed.2d 279 (2015). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. III. DISCUSSION A. Standing FRS first argues that Plaintiffs lack standing because they did not suffer an injury in fact. This argument is rejected. “[Standing is a federal jurisdictional question determining the power of the court to entertain the suit.” Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011) (internal quotation marks omitted). To satisfy this jurisdictional requirement, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). An injury in fact must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Id. at 1548. “For an injury to be particularized, it must affect the plaintiff in a personal and individual way.” Id. (internal quotation marks omitted); see Strubel v. Comenity Bank, 842 F.3d 181, 188 (2d Cir. 2016) (noting that the particularity requirement is satisfied if the plaintiff shows the defendant “injured her in a way distinct from the body politic”). To be concrete, an injury may be either tangible" }, { "docid": "19437000", "title": "", "text": "the burden of the 'party who seeks the exercise of jurisdiction in his favor,' ... 'clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute' \" (citation omitted) ). \"[P]laintiffs are required only to state a plausible claim that each of the standing elements is present.\" Attias v. Carefirst, Inc. , 865 F.3d 620, 625 (D.C. Cir. 2017) (emphasis in original). \"[W]hat may perhaps be speculative at summary judgment can be plausible on a motion to dismiss,\" and courts should not \"recast[ ] 'plausibility' into 'probability' \" by demanding predictive certainty. Wikimedia Found. v. Nat'l Sec. Agency , 857 F.3d 193, 208-12 (4th Cir. 2017) ; see also District of Columbia v. Trump , 291 F.Supp.3d 725, 738 (D. Md. 2018) (alleging injury-in-fact at the pleading stage is not akin to climbing \"Mount Everest\"). However, the Court does not \"apply the same presumption of truth to 'conclusory statements' and 'legal conclusions.' \" Beck , 848 F.3d at 270. Defendants argue that Plaintiffs have not alleged a concrete injury-in-fact and that, even if they have sufficiently alleged concrete injury-in-fact, it is not fairly traceable to the Defendants. The Court will address both arguments in turn. 1. Concrete Injury-in-fact The injury-in-fact requirement ensures \"that the plaintiff has a 'personal stake in the outcome of the controversy.' \" Susan B. Anthony List v. Driehaus , 573 U.S. 149, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (quoting Clapper v. Amnesty Intern. USA , 568 U.S. 398, 133 S.Ct. 1138, 1150 n.5, 185 L.Ed.2d 264 (2013) ). \"To establish injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.\" Wikimedia Foundation v. National Security Agency , 857 F.3d 193, 207 (4th Cir. 2017) (internal citations omitted). \"For an injury to be particularized, it must affect the plaintiff in a personal and individual way.\" Id. \"The purpose of the imminence requirement 'is to ensure that the alleged injury is not too speculative for Article III" }, { "docid": "20612375", "title": "", "text": "challenge is limited to an actual case or controversy. See U.S. Const., art. Ill, § 2. “The doctrine of standing gives meaning to these constitutional limits,” Susan B. Anthony List v. Driehaus, — U.S. -, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014), by requiring a plaintiff to “allege[] such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf,” Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (internal quotation marks omitted). To establish Article III standing, then, a plaintiff must show “(1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a-‘likelihood]’ that the injury ‘will be redressed by a favorable decision.’ ” Susan B. Anthony List v. Driehaus, 134 S.Ct. at 2341 (alteration in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The district court here concluded that plaintiffs failed to carry their standing burden at the first element. We review plaintiffs’ challenge to this legal conclusion de novo, borrowing from the familiar Rule 12(b)(6) standard, which instructs us to construe the pleadings in plaintiffs’ favor, accepting as true all material factual allegations contained therein. See W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir.2008). For an alleged injury to support constitutional standing, it “must be ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Susan B. Anthony List v. Driehaus, 134 S.Ct. at 2341 (quoting Lujan v. Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130 (other quotation marks omitted)). The Supreme Court has described the imminence requirement differently in different contexts, without specifying whether the descriptions are synonymous or distinct. See, e.g., Clapper v. Amnesty Int’l USA, — U.S. -, 133 S.Ct. 1138, 1150 & n. 5, 185 L.Ed.2d 264 (2013) (employing “certainly impending” standard while acknowledging cases referencing “substantial risk” standard, but declining to address possible distinction); accord Susan" }, { "docid": "12997439", "title": "", "text": "personal and individual way.” Id. (internal citations omitted). To be “concrete,”' an injury must be “real” as opposed to “abstract,” but it need not be “tangible.” Id. at 1548-49. In Spokeo, the Supreme Court recently addressed whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm and who, therefore, could not otherwise invoke the jurisdiction of a federal court by authorizing a private right of action based on a bare violation of & federal statute. 136 S.Ct. 1540. The Spokeo Court held that “Article III standing requires a concrete injury even in the context of a statutory violation.” Id. at 1549. As the Supreme Court explained, “Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Id. In other words, Congress’ decision that there should be a legal remedy for the violation of a particular statute does not mean that each such statutory violation creates an Article III injury. To the contrary, an injury “must be ‘de facto’-, that is, it must actually exist,” Id. at 1548 (citing Black’s Law Dictionary 479 (9th ed. 2009)). Defendants argue that consistent with Spokeo, Plaintiff hás failed to allege facts sufficient to demonstrate Article III standing. That is, Defendants argue that Plaintiffs mere allegation of an increased risk of identity theft is legally insufficient to show the requisite “concrete,” “particularized,” and “actual or imminent” injury-in-fact for Article III standing. In response, Plaintiff contends'-that he< has1 adequately stated a FACTA .claim by alleging facts to establish .a violation of the statute and an increased risk of identity-theft. Though-neither the Third Circuit Court of Appeals nor any court in this District has addressed the precise Article III standing issue involved here since the Supreme Court’s decision in Spokeo, several courts in' other jurisdictions have. For example, the Seventh Circuit Court of Appeals in Meyers v. Nicolet Restaurant of De Pere, LLC, 843 F.3d 724, 728-29 (7th Cir. 2016) concluded that" }, { "docid": "19493654", "title": "", "text": "the Court can consider CAI's claims, the Court will first consider their motion. A. State Prosecutors' Motion for Summary Judgment 1. Standing and Ripeness State Prosecutors argue that CAI cannot satisfy the requirements of standing doctrine or ripeness doctrine because CAI did not face a credible threat of prosecution before it brought suit. (ECF No. 101 at 6-20.) CAI contends that it does have standing to sue on the ground that such a threat exists. (ECF No. 117 at 4-11.) The Court observes that \"the Article III standing and ripeness issues in this case 'boil down to the same question.' \" See Susan B. Anthony List v. Driehaus , --- U.S. ----, 134 S.Ct. 2334, 2341 n.5, 189 L.Ed.2d 246 (2014) (quoting MedImmune, Inc. v. Genentech, Inc. , 549 U.S. 118, 128 n. 8, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007) ). Accordingly, the Court will consider State Prosecutors' arguments concerning standing and ripeness simultaneously, characterizing the discussion as one involving \"standing.\" Article III limits the jurisdiction of federal courts to cases and controversies. U.S. Const. art. III, § 2. Standing doctrine is \"[o]ne element of the case-or-controversy requirement,\" and a plaintiff that invokes federal jurisdiction must accordingly establish standing to sue. Clapper v. Amnesty Int'l , 568 U.S. 398, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013). A plaintiff has standing upon demonstrating an injury that is \"concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.\" Id. at 1147. A plaintiff has standing to bring a \"pre-enforcement challenge\" to a statute when the plaintiff \"faces a credible threat of prosecution\" under that law. N.C. Right to Life, Inc. v. Bartlett , 168 F.3d 705, 710 (4th Cir. 1999). Further, when \"the State has not disclaimed any intention of enforcing\" the challenged statute, a plaintiff \"need not actually violate\" that statute, \"or be proactively threatened with prosecution prior to violation, in order to have standing to challenge its constitutionality.\" Does 1-5 v. Cooper , 40 F.Supp.3d 657, 671-72 (M.D.N.C. 2014) ; see MedImmune, Inc. , 549 U.S. at 129, 127 S.Ct." }, { "docid": "16142200", "title": "", "text": "Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The heartland of constitutional standing is composed of the familiar amalgam of injury in fact, causation, and redressability. See Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130. In our view, the case at hand hinges on the presence or absence of a plausibly pleaded injury in fact. Such an injury “must be both ‘concrete and particularized and actual or imminent, not conjectural or hypothetical.’ ” Van Wagner Bos., 770 F.3d at 37 (quoting Susan B. Anthony List v. Driehaus, — U.S. —, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014)). The Supreme Court recently has emphasized that concreteness and particularization are distinct requirements. An injury is concrete only if it “actually exist[s].” Spokeo, Inc. v. Robins, — U.S. —, 136 S.Ct. 1540, 1543, 194 L.Ed.2d 635 (2016). For example, when an alleged injury is nothing more than “a bare procedural violation,” there may be no cognizable harm to the plaintiff and thus no concreteness. Id. at 1549-50. The particularization requirement is a different matter: it necessitates that a plaintiff has been affected “in a personal and individual way” by the injurious conduct. Id. at 1548 (quoting Lujan, 504 U.S. at 560 n. 1, 112 S.Ct. 2130). The particularization element of the injury-in-fact inquiry reflects the commonsense notion that the party asserting standing must not only allege injurious conduct attributable to the defendant but also must allege that he, himself, is among the persons injured by that conduct. See Lujan, 504 U.S. at 563, 112 S.Ct. 2130. The requirement that a plaintiff must adduce facts demonstrating that he himself is adversely affected guarantees that “the decision as to whether review will be sought [is] in the hands of those who have a direct stake in the outcome,” Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), and ensures that disputes are settled “in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action,” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State," }, { "docid": "21806116", "title": "", "text": "under the Constitution. Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). The party invoking federal jurisdiction must demonstrate that it has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S.Ct. at 1547 (citations omitted). 2. Starr Has Not Shown That It Suffered an Injury in Fact Although the party invoking federal jurisdiction must satisfy these constitutional minimum requirements at each stage of the litigation, the parties failed to address these elements in their briefs. This does not, however, prevent us from considering the issue. See Bender, 475 U.S. at 546, 106 S.Ct. 1326 (holding that courts can raise standing sua sponte). Therefore, we first consider the constitutional elements of standing. The “[fjirst and foremost” element of the constitutional standing inquiry is whether Starr has shown injury in fact. Citizens for Better Env’t, 523 U.S. at 103, 118 S.Ct. 1003 (citation omitted). “To establish injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Spokeo, 136 S.Ct. at 1548 (internal quotation marks and citation omitted). Because the Court of Federal Claims tried the case, Starr must show standing through “facts (if controverted) ... supported adequately by the evidence adduced at trial.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (internal quotation marks' and citation omitted). Starr cannot show injury in fact because Starr’s injury was not particularized. “Particularization is necessary to establish injury in fact.” Spokeo, 136 S.Ct. at 1548. “For an injury to be particularized, it must affect the plaintiff in a personal and individual way.” Id. (internal quotation marks and citation omitted). Neither the Court of Federal Claims nor Starr has presented any evidence that Starr’s injury was particularized. In fact, Starr acknowledged that “[e]aeh of the actions taken by the Government had an effect" }, { "docid": "11730105", "title": "", "text": "he felt compelled to make a sworn verification or engage a notary, or that he even responded to the challenged requests, so his allegations were insufficient to confer jurisdiction upon the federal courts. Lyshe appeals, arguing that this court has subject matter jurisdiction and that his complaint states a claim upon which relief may be granted. II. Article III of the Constitution limits the jurisdiction of federáis courts to hear only actual cases and controversies. U.S. Const, art. 3, § 2. The doctrine of standing aids us in defining these limits. The plaintiff bears the burden of establishing standing. Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). To satisfy the “irreducible constitutional minimum of standing,” the plaintiff must establish that: (1) he has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent rather than conjectural or hypothetical; (2) that there is a causal connection between the injury and the defendant’s alleged wrongdoing; and (3) that the injury can likely be redressed. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). At dispute here is only whether Lyshe suffered an injury in fact. The existence of an abstract injury is insufficient for a plaintiff to carry his burden on this element. City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Rather, a plaintiff must establish that he has a “personal stake in the outcome of the controversy.” Susan B. Anthony List v. Driehaus, — U.S. -, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). Whether a party has standing is an issue of the court’s subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Allstate Ins. Co. v. Global Med. Billing, Inc., 520 Fed.Appx. 409, 410-11 (6th Cir. 2013) (citing Murray v. U.S. Dep’t of Treasury, 681 F.3d 744, 748 (6th Cir. 2012)). We review such matters de novo. McGlone v. Bell, 681 F.3d 718," }, { "docid": "6694616", "title": "", "text": "(2016) (alteration in original) (quoting U.S. Const, art. III, § 1); see also Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (discussing “the proper — and properly limited — role of the courts in a democratic society”). Two of the limitation’s manifestations are the justiciability doctrines of standing and ripeness, which are interrelated; each is rooted in Article III. See Susan B. Anthony List v. Driehaus (“SBA List”), — U.S. -, 134 S.Ct. 2334, 2341 n.5, 189 L.Ed.2d 246 (2014) (“[T]he Article III standing and ripeness issues in this case ‘boil down to the same question.’” (quoting MedImmune, Inc, v. Genentech, Inc., 549 U.S. 118, 128 n.8, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007))); Warth, 422 U.S. at 499 n.10, 95 S.Ct. 2197 (noting the “close affinity” between standing, ripeness, and mootness); see also Richard H. Fallon et al., Hart and Wechsler’s The Federal Courts and the Federal System 219-20 (7th ed. 2015) (observing that ripeness “substantially replicate[s] the standing inquiry” in many respects). This case implicates both doctrines. A. Standing The “[fjirst and foremost” concern in standing analysis is the requirement that the plaintiff establish an injury in fact, Spokeo, 136 S.Ct. at 1547 (alteration in original) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)), which “helps to ensure that the plaintiff has a ‘personal stake in the outcome of the controversy,’ ” SBA List, 134 S.Ct. at 2341 (quoting Warth, 422 U.S. at 498, 95 S.Ct. 2197). To satisfy Article III, the injury “must be ‘concrete and particularized’ and ‘actual or imminent, not “conjectural” or “hypothetical.” ’ ” Id. (quoting Lujan, 504 U.S. at 560,112 S.Ct. 2130). In certain circumstances, “the threatened enforcement of a law” may suffice as an “imminent” Article III injury in fact. Id. at 2342. The rationale for pre-enforcement standing is that a plaintiff should not have to “expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Steffel v. Thompson, 415" }, { "docid": "12915948", "title": "", "text": "We conclude that the Wikimedia Allegation does and the Dragnet Allegation does not. A. 1. Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const, art. Ill, § 2. “The doctrine of standing gives meaning to these constitutional limits by ‘identifying] those disputes which are appropriately resolved through the judicial process.’ ” Susan B. Anthony List v. Driehaus, — U.S.-, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (alteration in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). To establish standing, a plaintiff must show: (1) an injury in fact; (2) a\" sufficient causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury will be redressed by a favorable decision. Id. “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) (quoting Lujan, 504 • U.S. at 560, 112 S.Ct. 2130). “For an injury to be particularized, it must affect the plaintiff in a personal and individual way.” Id. (internal quotation marks omitted). “The fact that an injury may be suffered by a large number of people does not of itself make that injury a nonjusticiable generalized grievance.” Id. at 1548 n.7. The purpose of the imminence requirement “is to ensure that the alleged injury is not too speculative for Article III purposes.” Clapper, 133 S.Ct. at 1147. The “threatened injury must be certainly impending to constitute injury in fact, and ... [ajllegations of possible future injury are not sufficient.” Id. (second alteration in original) (internal quotation marks omitted). “[E]ach element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561, 112 S.Ct." }, { "docid": "7306679", "title": "", "text": "in their briefs.” Phigenix, Inc. v. ImmunoGen, Inc., No. 2016-1544 (Fed. Cir. Apr. 20, 2016) (order denying ImmunoGens MTD). In its response brief, ImmunoGen argues anew that Phigenix lacks standing, Appellee’s Br. 29-37, and Phigenix again opposes, Appellant’s Br. 24-25 (incorporating the arguments made in Phigenix’s Resp. to MTD); Appellant’s Reply 3-16. “We have an obligation to assure ourselves of litigants’ standing under Article III” of the Constitution, DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (internal quotation marks and citation omitted), including when a party appeals from a final agency action, see Massachusetts v. EPA, 549 U.S. 497, 505-06, 516-26, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007). As the party seeking judicial review, Phigenix bears the burden of establishing that it has standing. See DaimlerChrysler, 547 U.S. at 342, 126 S.Ct. 1854. A. General Article III Standing Requirements “Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy” required by Article III. Spokeo, Inc. v. Robins, — U.S.-, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016); Hollingsworth v. Perry, — U.S. -, 133 S.Ct. 2652, 2661,186 L.Ed.2d 768 (2013) (explaining that Article III discusses the powers granted to the Judicial Branch and, inter aha, “confines the judicial power of federal courts to deciding actual ‘Cases’ or ‘Controversies’ ” (quoting U.S. Const, art. Ill, § 2)). “[T]he irreducible constitutional minimum of standing” consists of “three elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An appellant “must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the [appellee], (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S.Ct. at 1547 (citations omitted). As to the first element, “the injury-in-fact requirement requires [an appellant] to allege an injury that is both concrete and particularized.” Id. at 1545 (internal quotation marks and citation omitted). To constitute a “concrete” injury, the harm must “actually exist,” id. at 1548 (citation omitted), or appear “imminent,” Lujan, 504 U.S. at 560, 112" }, { "docid": "12915947", "title": "", "text": "instances of Section 702 surveillance was the product of Upstream surveillance,” and that it “appears substantially more likely that PRISM collection was used in [those] cases.” J.A. 195. As for Wikimedia, the court found that “the statistical analysis on which the argument rests [ (i.e., the probability calculation that there’s a greater than 99.9999999999% chance that the NSA is copying and reviewing Wikimedia’s communications) ] is incomplete and riddled with assumptions,” and that “[ljogically antecedent to plaintiffs’ flawed statistical analysis are plaintiffs’ speculative claims about Upstream surveillance based on limited knowledge of Upstream surveillance’s technical features and ‘strategic imperatives.’ ” See J.A. 197-99. From the district court’s dismissal of their complaint for lack of standing, Plaintiffs appeal. II. We review the district court’s decision de novo, Columbia Gas Transmission Corp. v. Drain, 237 F.3d 366, 369 (4th Cir. 2001), and proceed as follows. First, we lay out the framework for deciding whether a plaintiff has established standing at the motion-to-dismiss stage. Then, we review the Wikimedia and Dragnet Allegations to see whether either establishes standing. We conclude that the Wikimedia Allegation does and the Dragnet Allegation does not. A. 1. Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const, art. Ill, § 2. “The doctrine of standing gives meaning to these constitutional limits by ‘identifying] those disputes which are appropriately resolved through the judicial process.’ ” Susan B. Anthony List v. Driehaus, — U.S.-, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (alteration in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). To establish standing, a plaintiff must show: (1) an injury in fact; (2) a\" sufficient causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury will be redressed by a favorable decision. Id. “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Spokeo, Inc. v. Robins, —" }, { "docid": "7953527", "title": "", "text": "argument is rejected. “[Standing is a federal jurisdictional question determining the power of the court to entertain the suit.” Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011) (internal quotation marks omitted). To satisfy this jurisdictional requirement, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). An injury in fact must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Id. at 1548. “For an injury to be particularized, it must affect the plaintiff in a personal and individual way.” Id. (internal quotation marks omitted); see Strubel v. Comenity Bank, 842 F.3d 181, 188 (2d Cir. 2016) (noting that the particularity requirement is satisfied if the plaintiff shows the defendant “injured her in a way distinct from the body politic”). To be concrete, an injury may be either tangible or intangible so long as it “actually exist[s].” Spokeo, 136 S.Ct. at 1548-49. In examining whether an intangible- harm is concrete, a court should consider whether Congress has “identiffied] and elevat[ed]” the intangible harm alleged. Id. at 1549. “Congress has the power to define injuries and articulate chains of causation that- will give rise to a case or controversy where none existed before.” Id. However, “a bare procedural violation, divorced from any concrete harm,” does not satisfy Article Ill’s injury-in-fact requirement. Id. Since the Supreme Court’s decision in Spokeo, courts within and outside this Circuit have consistently held that a violation of 15 U.S.C. § 1692e can give rise to an injury in fact. See, e.g., Church v. Accretive Health, Inc., 654 Fed.Appx. 990, 994-95 (11th Cir. 2016); Fuentes v. AR Res., Inc., No. 15 Civ. 7988, 2017 WL 1197814, at *5 (D.N.J. Mar. 31, 2017) (collecting cases and joining the “overwhelming majority of courts that have determined that FDCPA violations under [§ 1692e] ... give rise to concrete, substantive injuries sufficient to establish Article" }, { "docid": "19437001", "title": "", "text": "injury-in-fact and that, even if they have sufficiently alleged concrete injury-in-fact, it is not fairly traceable to the Defendants. The Court will address both arguments in turn. 1. Concrete Injury-in-fact The injury-in-fact requirement ensures \"that the plaintiff has a 'personal stake in the outcome of the controversy.' \" Susan B. Anthony List v. Driehaus , 573 U.S. 149, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (quoting Clapper v. Amnesty Intern. USA , 568 U.S. 398, 133 S.Ct. 1138, 1150 n.5, 185 L.Ed.2d 264 (2013) ). \"To establish injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.\" Wikimedia Foundation v. National Security Agency , 857 F.3d 193, 207 (4th Cir. 2017) (internal citations omitted). \"For an injury to be particularized, it must affect the plaintiff in a personal and individual way.\" Id. \"The purpose of the imminence requirement 'is to ensure that the alleged injury is not too speculative for Article III purposes.' \" Id. (quoting Clapper , 133 S.Ct. at 1147 ). \"An allegation of future injury may suffice if the threatened injury is 'certainly impending,' or there is a 'substantial risk that the harm will occur.' \" Susan B. Anthony List , 134 S.Ct. at 2341 (quoting Clapper , 133 S.Ct. at 1150, n.5 ). Plaintiffs allege that they face a concrete injury in that their states and communities will be disproportionately undercounted as a result of the addition of the citizenship question to the 2020 Census. Plaintiffs rely on \"recent ACS data\" as indicating that the states and areas in which Plaintiffs reside contain \"a higher percentage of individuals belonging to Undercount Groups than the United States as a whole.\" E.g. , ECF No. 17 ¶ 121. As a result of living in areas with a higher percentage of individuals in the Undercount Groups, Plaintiffs claim that they will likely suffer a number of injuries. Specifically, they argue that the undercount will result in a loss of representation in the House of Representatives, as" }, { "docid": "20682313", "title": "", "text": "Because the court finds that Schwartz’s lawsuit must be dismissed based on standing and ripeness, the court does not reach the political question issue or the merits. See Lance v. Coffman, 549 U.S. 437, 440, 127 S.Ct. 1194, 167 L.Ed.2d 29 (2007) (per curiam) (“Federal courts must determine that they have jurisdiction before proceeding to the merits.”). A. Standing Standing is a jurisdictional question that concerns “the power of the court to entertain that suit.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). “Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’' and ‘Controversies.’” Susan B. Anthony List v. Driehaus, —— U.S. -, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (quoting U.S. Const, art. Ill, § 2). The doctrine- of standing is used to determine whether a “case” or “controversy” exists by “identifying] those disputes which are appropriately resolved through the judicial process.” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). To establish Article III standing, Schwartz “must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the conduct complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a favorable decision.’” Id. (quoting Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130). The burden to establish standing lies- with the party seeking to invoke the jurisdiction of a federal court. Id. at 2342. “An injury sufficient to satisfy Article III must be concrete and particularized and actual or imminent, not conjectural or hypothetical.” Id. at 2341 (citation and internal quotation marks omitted).. .[A] plaintiff raising only a generally available grievance about government&wkey; claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large-—does not state an Article III case or controversy. Lujan, 504 U.S. at 573-74, 112 S.Ct. 2130. Schwartz has not and cannot satisfy the injury in fact element of standing that “lies at the" }, { "docid": "19565243", "title": "", "text": "(1) \"an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.\" Gill v. Whitford , --- U.S. ----, 138 S.Ct. 1916, 1929, 201 L.Ed.2d 313 (2018) (internal quotation marks omitted); accord Spokeo, Inc. v. Robins , --- U.S. ----, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). The plaintiff must make this showing \"in the same way as any other matter on which the plaintiff bears the burden of proof, i.e. , with the manner and degree of evidence required at the successive stages of the litigation.\" Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Ultimately, the facts \"(if controverted) must be supported adequately by the evidence adduced at trial.\" Id. (internal quotation marks omitted). Injury in fact is the \"first and foremost of standing's three elements.\" Spokeo , 136 S.Ct. at 1547 (internal quotation marks and alterations omitted). \"To establish injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.\" Id. at 1548 (internal quotation marks omitted). An injury \"need not be actualized\" to satisfy Article III. Davis v. Fed. Election Comm'n , 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008). A \"future injury\" can suffice, so long as it is \"certainly impending, or there is a substantial risk that the harm will occur.\" Susan B. Anthony List v. Driehaus , 573 U.S. 149, 157, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (emphasis added) (internal quotation marks omitted); see also Clapper v. Amnesty Int'l USA , 568 U.S. 398, 414 n.5, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (noting that plaintiffs need not \"demonstrate that it is literally certain that the harms they identify will come about\"). Thus, for example, in a previous challenge to the conduct of the decennial census, the Supreme Court found that the plaintiffs had established standing \"on the basis of the" } ]

[ { "docid": "23426858", "title": "", "text": "upon their retirement. Defendant moved for summary judgment, arguing that no genuine issues of material fact existed since plaintiffs’ benefits did not vest under the applicable provisions of ERISA, the governing plan documents, or the collective bargaining agreements between Chromalloy and the respective unions representing the hourly employees at each of the three plants within the Division. The plaintiffs filed their own motion for summary judgment, and the district court, after reviewing the submissions of the parties, concluded in a thorough opinion that the governing plan documents unambiguously provided for the right to terminate the plan. Accordingly, the court rejected the plaintiffs’ motion for summary judgment and granted the defendant’s. On appeal, the plaintiffs-appellants contend that the district court erred because certain extrinsic evidence and inferences to be drawn from the record preclude the grant of summary judgment. Appellants also argue that they are entitled to summary judgment on their claim under the LMRA since the welfare benefits vested under the terms of the collective bargaining agreements. II. Analysis This court has recognized that summary judgment is particularly appropriate in cases involving the interpretation of contractual documents. Metalex Corp. v. Uniden Corp. of America, 863 F.2d 1331, 1333 (7th Cir.1988). In that context, summary judgment should be entered only if the pertinent provisions of the contractual documents are unambiguous; it is the lack of ambiguity within the express terms of the contract that forecloses any genuine issues of material fact. Id. If a district court determines that the pertinent provisions of the contract are unambiguous, it need not consider extrinsic evidence. At that point, the district court should proceed to declare the meaning of those provisions, an interpretation which this court reviews de novo as a question of law. Id. See also Bower v. Bunker Hill Co., 725 F.2d 1221, 1223 (9th Cir.1984). On appeal, appellants concede that it was appropriate to grant summary judgment on their claim that their retiree wel fare benefits automatically vested under the provisions of ERISA. Appellants now recognize that their claims concern the termination of “employee welfare benefits” and that Congress explicitly exempted such" } ]

[ { "docid": "23524760", "title": "", "text": "§ 1002(1). As such, his claim presents an issue of contractual interpretation, because ERISA does not require the vesting of welfare benefits. See Curtiss-Wright Corporation v. Schoonejongen, — U.S. —, —, 115 S.Ct. 1223, 1228, 131 L.Ed.2d 94 (1995); Land v. Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) Health and Welfare Fund, 25 F.3d 509, 514 (7th Cir.1994). Summary judgment is particularly appropriate in cases involving the interpreta tion of contracts. Ryan v. Chromalloy American Corp., 877 F.2d 598, 602 (7th Cir.1989). Where the contract is unambiguous, a court must determine the meaning of the contract as a matter of law. Id. The document should be read as a whole so that all its parts will be given effect. Preze v. Board of Trustees, 5 F.3d 272, 274 (7th Cir.1993); and related documents must be read together. Lippo v. Mobil Oil Corp., 776 F.2d 706, 713 n. 13 (7th Cir.1985). We examine the language and logic of the contractual documents. Bidlack v. Wheelabrator Corp., 993 F.2d 603, 607-609 (7th Cir.1993). Murphy’s claims rest almost entirely on extrinsic evidence so we must consider its proper place in our inquiry. First, we interpret the contract in light of the concrete circumstances in which it was written. See, e.g., Matter of Envirodyne Industries, Inc., 29 F.3d 301, 305-06 (7th Cir.1994). If, after placing the document in context, the court finds that a contract is unambiguous, it should interpret the contract as a matter of law. Ryan, 877 F.2d at 602. A contract is unambiguous if it is susceptible to only one reasonable interpretation, Illinois Conference of Teamsters and Employers Welfare Fund v. Mrowicki, 44 F.3d 451, 459 (7th Cir.1994), or put another way, a contract is ambiguous only if both parties were reasonable in adopting their different interpretations of the contract. See Miller, 39 F.3d at 760. And although extrinsic evidence can be used to show that a contract is ambiguous, see, e.g., AM International, Inc. v. Graphic Management Associates, Inc., 44 F.3d 572, 576-77 (7th Cir.1995), Colfax Envelope Corp. v. Local No. 458-3M Chicago Graphic Communications Intern. Union, AFL-CIO, 20" }, { "docid": "23176239", "title": "", "text": "representation. Nevertheless, for reasons that will become clear below, it is sometimes helpful to look at the arguable merits of the union’s proffered interpretation of a contract in order to determine whether a union breached its duty of fair representation in failing to arbitrate a grievance. Moreover, sometimes it is appropriate for the court to determine if the plaintiffs’ contractual claims are meritless as a matter of law. This is one of those cases. We, therefore, begin our analysis by considering whether the plaintiffs’ contractual claim lacks merit. C. Interpretation of the Collective Bargaining Agreement To some extent the disposition of this appeal turns on the construction of the CBA that regulated the terms of the plaintiffs’ employment with Schwitzer. The interpretation of contractual language is ordinarily a question for the courts and not the jury. Ryan v. Chromalloy American Corp., 877 F.2d 598, 602 (7th Cir.1989) (affirming the district court’s grant of summary judgment with regard to the interpretation of an employee benefit plan under ERISA and Section 301 of the LMRA). In fact, the interpretation of contractual documents is an appropriate question for the jury only when the contractual language is ambiguous. Id. A contract’s language which lends itself to one reasonable interpretation is not ambiguous and, therefore, can be construed as a matter of law. See Truck Drivers Union, Local 705 v. Schneider Tank Lines, Inc., 958 F.2d 171, 175 (7th Cir.1992) (upheld summary judgment based on the “most natural reading” of a collective bargaining agreement); La Salle Nat’l Bank v. General Mills Restaurant Group, Inc., 854 F.2d 1050, 1052 (7th Cir.1988) (“[i]f a judge can make sense of a contract without hearing testimony, his duty is to construe the contract without letting the parties introduce any evidence other than the contract itself.”). See also International Brotherhood of Elec. Workers, Local 47 v. Southern California Edison Co., 880 F.2d 104, 107 (9th Cir.1989) (focused on the reasonableness of appellant’s proffered interpretation of a collective bargaining agreement in determining whether summary judgment was warranted). Furthermore, a case involving the interpretation of contractual documents seems to be even more" }, { "docid": "23176236", "title": "", "text": "grievance with regard to these creep rights. The plaintiffs argue that the district court erred in reaching these conclusions. However, we agree with the district court’s determination that the only reasonable interpretation of the CBA leads to the conclusion that the plaintiffs could not creep into immediate pension benefits by accumulating up to five years of seniority after the plant closure. As we explain below, this determination helps to dispose of the plaintiffs’ claims that the Steelworkers Union violated its duty of fair representation in the negotiation, ratification and arbitration processes, and it helps to dispose of the plaintiffs’ claims against Schwitzer for breach of contract. Therefore, we affirm the district court’s order for summary judgment. II. ANALYSIS A. Standard of Review We review this decision to grant summary judgment de novo. “We will only affirm the grant of summary judgment when there is no geriuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1188 (7th Cir.1990); Fed. R.Civ.P. 56(c). In reviewing this grant of summary judgment, we will view the facts in the light most favorable to the plaintiffs, the nonmoving party. A-Abart Elec. Supply Inc. v. Emerson Elec. Co., 956 F.2d 1399, 1401-02 (7th Cir.1992). B. Relationship Between Contract Claim and Duty of Fair Representation Claims The plaintiffs claim that the Steelworkers Union breached its duty of fair representation in the negotiation, ratification and arbitration processes. This claim is brought under Section 301 of the Labor-Management Relations Act (“LMRA”). See 29 U.S.C.A. § 185. The plaintiffs’ claim against Schwitzer is also brought under Section 301 of the LMRA. See id. This claim is based on breach of the Collective Bargaining Agreement (“CBA”). Article 31 of the CBA, however, requires that employee grievances should be resolved through union/company meetings and that the final step in the grievance process should be binding arbitration. “Courts are not to usurp those functions which collective-bargaining contracts have properly ‘entrusted to the arbitration tribunal.’ ” Hines v. Anchor Motor Freight, Inc., 424 U.S. 554," }, { "docid": "16557912", "title": "", "text": "Arch of Illinois v. District 12, United Mine Workers of America, 85 F.3d 1289, 1292 (7th Cir.1996), quoting Polk Bros. v. Chicago Truck Drivers Union, 973 F.2d 593, 597 (7th Cir. 1992). An arbitrator may, however, look to sources other than the CBA for guidance. Anheuser-Busch, Inc. v. Beer, Soft Drink Local Union No. 711, 280 F.3d 1133, 1137 (7th Cir.2002) (quoting Tootsie Roll Indus., Inc. v. Local Union # 1, 832 F.2d 81 (7th Cir.1987)). This court has ruled that it is not its job to decide if an arbitrator erred in interpreting a labor contract, even if the error was significant. Instead, we will only determine if the arbitrator did indeed interpret the contract. Hill v. Norfolk & Western Ry. Co., 814 F.2d 1192, 1195 (7th Cir.1987). Thus, a petitioner will not prevail unless he can prove that “there is no possible interpretive route to the [arbitrator’s] award, so a non-contractual basis can be inferred.” Arch of Illinois, 85 F.3d at 1293-94 (quoting Chicago Typographical Union No. 16 v. Chicago Sun-Times, Inc., 935 F.2d 1501, 1506 (7th Cir.1991)). Here, the interpretive route is easy to follow. CUNA argues that Arbitrator Cohen exceeded his authority by finding that CUNA’s outsourcing violated contractual provisions because his ruling considered provisions of the CBA other than those cited by Local 39 in its grievance. However, Arbitrator Cohen’s decision to consider the outsourcing issue is reasonable and clearly “draws its essence from the collective bargaining agreement,” and is not merely Arbitrator Cohen’s “own brand of industrial justice.” United Paper Workers Int’l Union et al., 484 U.S. at 36, 108 S.Ct. 364. Arbitrator Cohen found that because Local 39 alleged in the grievance that CUNA failed to show that the layoffs were necessary, he had to examine CUNA’s reason underlying the layoffs to determine whether or not the layoffs were necessary. Since the plaintiff claimed the layoffs were necessary due to outsourcing, outsourcing was within the scope of what Arbitrator Cohen had to address to deal thoroughly with the grievance. There was no provision in the articles cited in the grievance that specifically endorsed" }, { "docid": "23176259", "title": "", "text": "merit as a matter of law, this purpose is not served in allowing the employee to pursue its claim for breach of the duty of fair representation. Indeed, an employee suffers no injury when the union fails to process a meritless grievance. United Steelworkers of America v. NLRB, 692 F.2d 1052, 1058 (7th Cir.1982) (“[s]ince there was no finding that the grievance had merit, it cannot be said that the Union caused any damage_”); Graf, 697 F.2d at 776 (“a union’s failure to represent a worker in the grievance process injures him only if his grievance has merit — only if the collective bargaining agreement has been violated_”). For these reasons, an employee cannot prevail on a fair representation claim based on the union’s failure to process a grievance if the employee’s claim lacks merit. Hines, 424 U.S. at 570-71, 96 S.Ct. at 1059; United Steelworkers, 692 F.2d at 1057; NLRB v. Eldorado Mfg. Corp., 660 F.2d 1207, 1214 (7th Cir.1981) (“[¡liability for failure to process discharge grievances cannot attach unless the grievances would have been meritorious and unless the Union’s failure to process was in bad faith.”). We have already determined that the plaintiffs’ proffered interpretation of the contract lacks merit as a matter of law. Therefore, fortunately for everyone involved, the Steelworkers Union’s actions did not cause the plaintiffs any injury. However, the Union might not be so fortunate the next time around. Nonetheless, because the plaintiffs raised a meritless contract claim, the plaintiffs’ claim that the Steelworkers Union breached its duty of fair representation in failing to arbitrate the plaintiffs’ grievance cannot withstand summary judgment. E. Breach of Contract Claim As we indicated above, in order to prevail on a claim for breach of contract against Schwitzer, the plaintiffs had to demonstrate that the Union violated its duty of fair representation in failing to arbitrate the grievance. As we just explained, the plaintiffs are not able to prevail under such a claim. Moreover, our earlier contract analysis makes it clear that Schwitzer did not breach its contractual obligations with the plaintiffs in failing to award them immediate" }, { "docid": "23176258", "title": "", "text": "above statement, when read in the light most favorable to the plaintiffs, does not put forth any such selfless motives. Instead, this admission indicates that the Union believed that the plaintiffs’ contract claim had some merit and that the Union representatives put their personal interests ahead of the plaintiffs’ interests. Such self-protectionist motives are not appropriate for fiduciaries. Accordingly, it appears that the plaintiffs have offered sufficient evidence to raise a factual issue as to whether the Steelworkers Union acted in bad faith. Although the Steelworkers Union’s motivations suggest bad faith, it is another question whether or not the plaintiffs have stated a recoverable action. The Supreme Court has indicated that the fair representation analysis in the grievance context is important because it provides employees with recourse when “the contractual processes have been seriously flawed by the union’s breach of its duty to represent em ployees honestly and in good faith and without invidious discrimination or arbitrary conduct.” Hines, 424 U.S. at 570, 96 S.Ct. at 1059. When, however, the employee’s underlying contract claim lacks merit as a matter of law, this purpose is not served in allowing the employee to pursue its claim for breach of the duty of fair representation. Indeed, an employee suffers no injury when the union fails to process a meritless grievance. United Steelworkers of America v. NLRB, 692 F.2d 1052, 1058 (7th Cir.1982) (“[s]ince there was no finding that the grievance had merit, it cannot be said that the Union caused any damage_”); Graf, 697 F.2d at 776 (“a union’s failure to represent a worker in the grievance process injures him only if his grievance has merit — only if the collective bargaining agreement has been violated_”). For these reasons, an employee cannot prevail on a fair representation claim based on the union’s failure to process a grievance if the employee’s claim lacks merit. Hines, 424 U.S. at 570-71, 96 S.Ct. at 1059; United Steelworkers, 692 F.2d at 1057; NLRB v. Eldorado Mfg. Corp., 660 F.2d 1207, 1214 (7th Cir.1981) (“[¡liability for failure to process discharge grievances cannot attach unless the grievances would have" }, { "docid": "14207111", "title": "", "text": "Rules of the United States Court of Appeals for the Seventh Circuit provides this court with the discretion to certify dispositive questions of state law to' the state’s highest court in accordance with the rules of the state court. TransAmerica, Ins. Co. v. Henry, 904 F.2d 387, 390 (7th Cir.1990). Rule 15(0) of the Indiana Rules of Appellate Procedure provides for certification when the Indiana Supreme Court has not decided the determinative question of Indiana law. This court has been especially willing to certify questions when the issue before this court is one of first impression. See id. Nonetheless, fact specific, particularized decisions that lack broad, general significance are not suitable for certification to a state’s highest court. Diginet, Inc. v. Western Union ATS, Inc., 958 F.2d 1388, 1395 (7th Cir.1992). This case requires the interpretation of a contract. Courts must look to the particularized language before it and the particularized negotiations between the parties in construing contractual documents. Cases involving the interpretation of contractual documents are, therefore, by nature particularized inquiries. For this reason, it is often difficult to discern any generalized principals from such cases — a fact demonstrated by the case before us today. While we agree that in the broadest sense the enforceability of standby deposits in the mortgage loan context is an important issue, we do not agree that the resolution of this case will have much impact on future cases involving this issue. Rather, as we emphasize below, this narrow decision is based on the particular language in the agreement before this court. Moreover, while this case raises challenging questions of contractual interpretation, we find that Indiana’s decisions in analogous cases and Indiana’s general principles of contractual construction provide enough guidance. Therefore, we choose not to certify this issue regarding the enforceability of standby deposits in the mortgage loan context. B. Standard of Review There seems to be some confusion with regard to this court’s standard of review. As it turns out, the bulk of this decision’s analysis focuses on questions of law reviewable de novo. Namely, much of the analysis involves the interpretation" }, { "docid": "10294720", "title": "", "text": "they nonetheless must be dismissed because plaintiffs have failed to exhaust their contractual remedies. Specifically, defendants contend that resolution of the instant § 1981 claims will necessitate the interpretation of the various CBAs. As such, defendants maintain that plaintiffs’ claims must proceeding in accordance with § 301 of the Labor Management Relations Act of 1947,29 U.S.C. § 185(a) which, pursuant to the various contractual grievance procedures, requires arbitration of disputes over the interpretation of the CBAs. We disagree. The Seventh Circuit has addressed this very issue in Waters v. Wisconsin Steel Works of Int’l Harvester Co., 502 F.2d 1309 (7th Cir.1974), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976). In Waters, plaintiffs contended that its former employer’s “last hired, first fired” seniority system violated § 1981, as did two amendatory agreements to the CBA which affected employee recall rights and seniority status. Id. at 1312-13. On appeal, the union contended that “plaintiffs should be barred from proceeding against the union under § 1981 because they failed to exhaust their contractual remedies under the collective bargaining agreement.” Id. at 1316. Observing that the nature of the action “is that of a complaint against racial discrimination in employment and not a labor law action, asserting rights under a collective bargaining agreement,” the Seventh Circuit held that § 1981 does not require exhaustion of contractual remedies under the CBA. Id. In describing the nature of the action, the Waters court noted that “the focus of this civil rights suit is an attack by plaintiffs on the contract itself as embodying racially discriminatory practices.” Id. In order to distinguish Waters, defendants grasp upon this language, contending that, while exhaustion may not be required where § 1981 plaintiffs attack the contract itself, exhaustion is required where such plaintiffs seek to enforce the rights guaranteed under the contract. Defendants’ distinction, however, is without substance. First, plaintiffs do not seek to enforce contractual rights via Count III; rather, they endeavor to vindicate alleged civil rights violations. Moreover, the court’s determination that exhaustion of remedies is not necessary under § 1981, was derived from" }, { "docid": "23341900", "title": "", "text": "breach of the duty of fair representation. On appeal and cross-appeal, this court reversed and remanded, rejecting the district court’s incorporation of bad faith as an essential element of unfair representation: “We do not find the duty of fair representation so limited. In Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967), the Supreme Court held that union actions which are “arbitrary, discriminatory, or in bad faith” could establish a breach of the duty of fair representation.... We believe that the district court misread Faca when it held that “bad faith” must be read into the separate and independent standards of “arbitrary” or “discriminatory” treatment. Union action which is arbitrary or discriminatory need not be motivated by bad faith to amount to unfair representation.” Ruzicka v. General Motors Corp., 523 F.2d 306, 309-10 (6th Cir. 1975), reh. denied, 528 F.2d 912 (6th Cir. 1975). (Ruzicka I.). We also granted summary judgment in favor of the unions based upon their cross-claim against General Motors seeking arbitration. The trial court was directed to order arbitration with the GM-UAW umpire while retaining jurisdiction, and if the National Agreement was interpreted to mean that GM was relieved of its contractual duties because of the union’s failure to follow grievance procedures, appropriate relief against Local 166 on the unfair representation claim could then be awarded. 523 F.2d at 315. On remand, the district court ordered the contractual merits of plaintiff’s discharge to be submitted to the umpire. The court did not direct that the umpire was first to be presented with the union’s claim that Ruzicka’s grievance was procedurally alive despite the untimely processing. The court reasoned that GM’s procedural defense— that the finality provision of the collective bargaining agreement barred the wrongful discharge claim — was dependent upon the outcome of plaintiff’s unfair representation claim against the union. Since that claim could only be determined by the court, the court would also be the appropriate authority for deciding whether the union’s conduct nullified the finality provision. The trial court relied upon the intervening decision of Hines v. Anchor" }, { "docid": "23176260", "title": "", "text": "been meritorious and unless the Union’s failure to process was in bad faith.”). We have already determined that the plaintiffs’ proffered interpretation of the contract lacks merit as a matter of law. Therefore, fortunately for everyone involved, the Steelworkers Union’s actions did not cause the plaintiffs any injury. However, the Union might not be so fortunate the next time around. Nonetheless, because the plaintiffs raised a meritless contract claim, the plaintiffs’ claim that the Steelworkers Union breached its duty of fair representation in failing to arbitrate the plaintiffs’ grievance cannot withstand summary judgment. E. Breach of Contract Claim As we indicated above, in order to prevail on a claim for breach of contract against Schwitzer, the plaintiffs had to demonstrate that the Union violated its duty of fair representation in failing to arbitrate the grievance. As we just explained, the plaintiffs are not able to prevail under such a claim. Moreover, our earlier contract analysis makes it clear that Schwitzer did not breach its contractual obligations with the plaintiffs in failing to award them immediate pension benefits. Accordingly, we must also affirm the district court’s grant of summary judgment on the breach of contract claim against Schwitzer. F. Breach of the Duty of Fair Representation in the Negotiation and Ratification Process The plaintiffs also claim that the Steelworkers Union breached its duty of fair representation when it negotiated and obtained the ratification of the Closure Agreement. We begin with an evaluation of the negotiation process. The plaintiffs have offered no evidence indicating that the Steelworkers Union had bad faith motives when it adopted a Closing Agreement which did not provide the plaintiffs with the desired creep rights. Nor, have the plaintiffs offered any evidence implicating invidious discrimination, which is necessary for the discrimination prong of the fair representation analysis. O’Neill, 111 S.Ct. at 1137. As for the arbitrary prong, plaintiffs argue that the Steelworkers Union violated its duty of fair representation when it negotiated away vested creep rights that existed under the CBA. Nonetheless, we determined above that the CBA did not provide for such creep rights. Accordingly, the Steelworkers" }, { "docid": "3602667", "title": "", "text": "864 (6th Cir. 1968). I believe that ambiguity can be found in the agreement only by a strained reading. However, even if the instrument were ambiguous and a jury might be permitted to determine the meaning intended by the parties to be placed upon unclear terms, reversal would still be required because the district court failed to give correct and sufficiently specific instructions to the jury about the legal rights and duties created by the instrument it was asked to construe. Although I agree that the meaning of ambiguous contractual provisions may present a question of fact to be resolved by a jury in appropriate cases, a jury, after factual ambiguity has been resolved, does not have the power to determine the legal effect to be accorded the provisions of the contract. It is a matter of elementary contract law that “[t]he determination of the legal operation of a contract, after the meaning of its language has been adopted by process of interpretation, is always for the court, because ‘legal operation’ is the result of applying rules of law to the facts. . . . [Construction is always a matter of law for the court.” 3 A. Corbin, Contracts §§ 534, 554 (1960). Nor do I believe that under the circumstances of this case, the union could waive the employer’s contractual right to receive notice of an employee grievance. The employer bargained for this right, and although it might waive it, the union, the opposite contracting party, could not. The district court erred when it instructed the jury that the union could waive notice for the employer, and the majority opinion, by not discussing the issue, approves this error by silence. Certainly the Supreme Court’s decision in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), does not authorize this instruction. The only question in that ease was whether an employee who charged his union with breaching its duty of fair representation, a matter cognizable by the NLRB as an unfair labor practice, was precluded by the preemption doctrine from pursuing directly his grievance in a" }, { "docid": "5300458", "title": "", "text": "preclusive effect of a prior arbitrator’s decision was itself a question for an arbitrator. The district court granted summary judgment in favor of the Union and denied both parties’ requests for sanctions. NACCO appeals the district court’s grant of summary judgment. The Union cross-appeals, challenging the district court’s denial of its request for Rule 11 sanctions. The Union also has filed a motion asking this court to award sanctions against NACCO pursuant to Fed. R. App. P. 38. II. ANALYSIS A. Summary Judgment We review the district court’s grant of summary judgment de novo. Gorbitz v. Corvilla, Inc., 196 F.3d 879, 881 (7th Cir.1999). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The facts of the present case are undisputed, so we turn to an analysis of the relevant law. It is well-established that the determination as to “[wjhether a particular bargaining agreement creates a duty to arbitrate is a matter for judicial determination.” Local Union 1393 Int’l Bhd. of Elec. Workers v. Utilities Dist. of W. Indiana, 167 F.3d 1181, 1183 (7th Cir.1999). However, it is equally well-established that “the preclusive effect of the first arbitrator’s decision is an issue for a later arbitrator to consider.” Brotherhood of Maintenance of Way Employees v. Burlington Northern R.R. Co., 24 F.3d 937, 940 (7th Cir.1994) (citing W.R. Grace & Co. v. United Rubber Workers, 461 U.S. 767, 765, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983)); see also Production Employees’ Local 504 v. Roadmaster Corp., 916 F.2d 1161, 1162 (7th Cir.1990) (“Whether more than one arbitrator can take a crack at interpreting the contract is itself a question of contractual interpretation.”). As previously noted, the CBA included an arbitration clause which stated that “[a]ll disputes are subject to arbitration.” By including this clause in the CBA, the parties agreed to have their disputes concerning construction of the CBA, including its" }, { "docid": "23176238", "title": "", "text": "562-63, 96 S.Ct. 1048, 1055, 47 L.Ed.2d 231 (1976) (citing Steelworkers v. American Mfg. Co., 363 U.S. 564, 566, 80 S.Ct. 1343, 1345, 4 L.Ed.2d 1403 (1960)). Accordingly, federal courts should review allegations that an employer breached a collective bargaining agreement that con tains an arbitration clause only when the employee can prove that “ ‘the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.’ ” Id. at 566, 96 S.Ct. at 1057 (citing Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967)). Therefore, in order to prevail against Schwitzer, the plaintiffs must show that the Steelworkers Union breached its duty to fairly represent the employees in the arbitration process, and it must show that Schwitzer breached the CBA. Because employees choose their bargaining representative, and because most collective agreements contain mechanisms for resolving employee grievances, courts should be reluctant to construe as a matter of law collective bargaining agreements when evaluating whether a union has violated its duty of fair representation. Nevertheless, for reasons that will become clear below, it is sometimes helpful to look at the arguable merits of the union’s proffered interpretation of a contract in order to determine whether a union breached its duty of fair representation in failing to arbitrate a grievance. Moreover, sometimes it is appropriate for the court to determine if the plaintiffs’ contractual claims are meritless as a matter of law. This is one of those cases. We, therefore, begin our analysis by considering whether the plaintiffs’ contractual claim lacks merit. C. Interpretation of the Collective Bargaining Agreement To some extent the disposition of this appeal turns on the construction of the CBA that regulated the terms of the plaintiffs’ employment with Schwitzer. The interpretation of contractual language is ordinarily a question for the courts and not the jury. Ryan v. Chromalloy American Corp., 877 F.2d 598, 602 (7th Cir.1989) (affirming the district court’s grant of summary judgment with regard to the interpretation of an employee benefit plan under ERISA and Section 301 of the LMRA). In fact," }, { "docid": "22464488", "title": "", "text": "of Civil Procedure should be given preclusive effect. The rule expressly provides that such dismissals are \"subject to revision at any time before the entry of judgment” and therefore are inherently tentative. Thus, the court was not faced with the issue here: whether a jury verdict after a full trial on the merits precluded reconsideration of the issue. We are satisfied that the language which the Unions rely upon in United States v. Arkansas should not be read out of the context of the special factual circumstances of that case. Furthermore, we are unpersuaded by the Unions' argument that McGraw Edison, 767 F.2d 485, stands for the broad proposition that arbitrators are not bound by res judicata principles. The court found the doctrine inapplicable there because the earlier award involved a different contract and different union. Id. at 489. McMILLIAN, Circuit Judge, dissenting. I respectfully dissent. In my view, the district court erred as a matter of law in finding that the no-strike clause set forth in Article II, Clause 5 of the Collective Bargaining Agreement was ambiguous. Ordinarily, construction of contractual agreements constitutes a question of law. UFCW Local 150 v. Dubuque Packing Co., 756 F.2d 66, 69 (8th Cir.1985) (UFCWLocal 150). The general rule is that interpretation of a contract is for the court and that the contract meaning is to be garnered from the four corners of the document. Atkins v. Hartford Casualty Insurance Co., 801 F.2d 346, 348 (8th Cir.1986) (citing Press Machinery Corp. v. Smith RPM Corp., 727 F.2d 781, 784 (8th Cir.1984)). This rule reflects the sound policy judgment that assigning questions of contract interpretation to the court contributes to the stability and predictability of contractual relations by limiting the power of the trier of fact. See Restatement (Second) of Contracts § 212 comment b (1981). To further this policy, questions of contract interpretation are also treated as questions of law for purposes of appellate review. Restatement (Second) of Contracts § 212 comment b. As this court has stated, appellate courts “are not required to defer to the interpretation given [to the parties’ collective" }, { "docid": "23176240", "title": "", "text": "the interpretation of contractual documents is an appropriate question for the jury only when the contractual language is ambiguous. Id. A contract’s language which lends itself to one reasonable interpretation is not ambiguous and, therefore, can be construed as a matter of law. See Truck Drivers Union, Local 705 v. Schneider Tank Lines, Inc., 958 F.2d 171, 175 (7th Cir.1992) (upheld summary judgment based on the “most natural reading” of a collective bargaining agreement); La Salle Nat’l Bank v. General Mills Restaurant Group, Inc., 854 F.2d 1050, 1052 (7th Cir.1988) (“[i]f a judge can make sense of a contract without hearing testimony, his duty is to construe the contract without letting the parties introduce any evidence other than the contract itself.”). See also International Brotherhood of Elec. Workers, Local 47 v. Southern California Edison Co., 880 F.2d 104, 107 (9th Cir.1989) (focused on the reasonableness of appellant’s proffered interpretation of a collective bargaining agreement in determining whether summary judgment was warranted). Furthermore, a case involving the interpretation of contractual documents seems to be even more appropriate for construction by a judge as a matter of law, as opposed to a jury, when the party challenging the court’s interpretation fails to support its proffered interpretation with ex trinsic evidence. In this case, the only evidence offered by the plaintiffs in support of their contractual interpretation is the contract and some conclusory post-formation statements regarding what the various parties thought the contract meant. These post-formation interpretations say nothing about what was intended at the time in which the parties entered into the agreement. See Marentette v. Local 174, United Automobile Workers, 907 F.2d 603, 612 (6th Cir.1990). Accordingly, the only evidence before us in this question of contractual interpretation is the legal document itself. The district court concluded that thé only reasonable interpretation of the CBA leads to the conclusion that the plaintiffs cannot accumulate seniority rights for up to five years after the plant closure in order to creep into an immediate pension plan. The plaintiffs, on the other' hand, argue that their interpretation does not lack merit as a matter" }, { "docid": "12085650", "title": "", "text": "interpretation should persist. Plenary review of questions of law is necessary to assure that the law is reasonably uniform and predictable. This goal has less application to issues of contractual interpretation, although not zero application, for often either the same contract or identical language in different contracts gives rise to a number of lawsuits, and it is desirable that they be decided the same way. That is a common situation with insurance contracts and other form contracts — and with arbitration clauses as well, as we shall see. But the question of the continued appropriateness of the practice of plenary appellate review of contractual interpretation is for another day. In contesting the district judge’s interpretation, the union makes the superficially appealing argument that disputes over management prerogatives are nonarbitrable only if the union fails to base a grievance on a specified provision of the collective bargaining agreement. The union named Article 24, § 14; Article 24 is an express provision of the collective bargaining agreement; therefore the grievance is arbitrable, however slim the union’s chances of persuading an arbitrator that the company violated Article 24. We agree with the company and the district judge that this is too wooden, too blinkered, too literal-minded an interpretation. A “grievance” is merely a claim of breach of the collective bargaining agreement (see Lancaster v. Norfolk & Western Ry., 773 F.2d 807, 814 (7th Cir.1985), and cases cited there). (This is when there is a collective bargaining agreement; when there is not, the word has a broader signification, see Szabo v. U.S. Marine Corp., 819 F.2d 714, 720 (7th Cir.1987).) Often the collective bargaining agreement will expressly define “grievance” as a claimed breach of the agreement. See, e.g., Vantine v. Elkhart Brass Mfg. Co., 762 F.2d 511, 514 (7th Cir.1985). The agreement in this case does not define the term, but we do not understand either party to be contending that a grievance not founded on a breach of the collective bargaining agreement would be arbitrable. And any breach would of necessity be the breach of an express provision. All provisions of a collective" }, { "docid": "23176237", "title": "", "text": "(7th Cir.1990); Fed. R.Civ.P. 56(c). In reviewing this grant of summary judgment, we will view the facts in the light most favorable to the plaintiffs, the nonmoving party. A-Abart Elec. Supply Inc. v. Emerson Elec. Co., 956 F.2d 1399, 1401-02 (7th Cir.1992). B. Relationship Between Contract Claim and Duty of Fair Representation Claims The plaintiffs claim that the Steelworkers Union breached its duty of fair representation in the negotiation, ratification and arbitration processes. This claim is brought under Section 301 of the Labor-Management Relations Act (“LMRA”). See 29 U.S.C.A. § 185. The plaintiffs’ claim against Schwitzer is also brought under Section 301 of the LMRA. See id. This claim is based on breach of the Collective Bargaining Agreement (“CBA”). Article 31 of the CBA, however, requires that employee grievances should be resolved through union/company meetings and that the final step in the grievance process should be binding arbitration. “Courts are not to usurp those functions which collective-bargaining contracts have properly ‘entrusted to the arbitration tribunal.’ ” Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 562-63, 96 S.Ct. 1048, 1055, 47 L.Ed.2d 231 (1976) (citing Steelworkers v. American Mfg. Co., 363 U.S. 564, 566, 80 S.Ct. 1343, 1345, 4 L.Ed.2d 1403 (1960)). Accordingly, federal courts should review allegations that an employer breached a collective bargaining agreement that con tains an arbitration clause only when the employee can prove that “ ‘the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.’ ” Id. at 566, 96 S.Ct. at 1057 (citing Vaca v. Sipes, 386 U.S. 171, 186, 87 S.Ct. 903, 914, 17 L.Ed.2d 842 (1967)). Therefore, in order to prevail against Schwitzer, the plaintiffs must show that the Steelworkers Union breached its duty to fairly represent the employees in the arbitration process, and it must show that Schwitzer breached the CBA. Because employees choose their bargaining representative, and because most collective agreements contain mechanisms for resolving employee grievances, courts should be reluctant to construe as a matter of law collective bargaining agreements when evaluating whether a union has violated its duty of fair" }, { "docid": "126692", "title": "", "text": "identify the specific statutes the agreement purports to incorporate or include an arbitration clause that explicitly refers to statutory claims.” Id. at 359-60. In Ibarra, the court concluded that the CBA did not require an employee to submit her Title VII claim to the grievance process because the CBA only stated generally that “any controversy, complaint, misunderstanding or dispute arising as to interpretation, application or observance of any of the provisions of this Agreement” must be submitted to the grievance process. Id. at 356-57. This dispute therefore turns on whether the district court properly concluded that there was no genuine issue of fact as to whether the MOU and the CBA, when read together, clearly and unmistakably waived union members’ right to a judicial forum for ADEA and other statutory discrimination claims. When interpreting a collective bargaining agreement, federal law governs. See Int’l Ass’n of Machinists & Aerospace Workers v. Masonite Corp., 122 F.3d 228, 231 (5th Cir.1997); see also Textile Workers Union v. Lincoln Mills of Ala., 353 U.S. 448, 456-57, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). Nevertheless, “courts may draw upon state rules of contractual interpretation to the extent that those rules are consistent with federal labor policies.” Nichols v. Alcatel USA Inc., 532 F.3d 364, 377 (5th Cir.2008) (internal quotation marks omitted). “However, the construction and application of a collective bargaining agreement’s terms cannot be strictly confined by ordinary principles of contract law.” United Paperworkers Int’l Union v. Champion Int’l Corp., 908 F.2d 1252, 1256 (5th Cir.1990). “The provisions of a labor contract may be more readily expanded by implication than those of contracts memorializing other transactions.” Id. Moreover, “[w]hen several documents represent one agreement, all must be construed together in an attempt to discern the intent of the parties, and the court should attempt to give effect to every contractual provision.” Id. Here, the CBA, by itself, is not clear and unmistakable. It states: This grievance procedure and arbitration shall be the exclusive remedy with respect to any and all disputes arising between the Union or any person working under the Agreement ... and [West" }, { "docid": "6861912", "title": "", "text": "judgment to the union. This appeal followed. DISCUSSION I. “The proper interpretation of an unambiguous contract is a question of law for the court, and a dispute on such an issue may properly be resolved by summary judgment. We review de novo questions as to the ambiguity and meaning of the language of a contract, and as to the propriety of summary judgment.” Omni Quartz, Ltd. v. CVS Corp., 287 F.3d 61, 64 (2d Cir.2002) (citations omitted). Summary judgment is appropriate where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Moreover, here the district court’s grant of summary judgment for the union served as a “decision that the dispute must be arbitrated under the terms of the CBA,” which also would call for de novo review. Coca-Cola Bottling Co. of N.Y., Inc. v. Soft Drink & Brewery Workers Union Local 812, 242 F.3d 52, 56 (2d Cir.2001). We are thus tasked with determining whether the CBA between ATL and UTU required ATL to submit the dispute to arbitration before bringing suit in federal court. It has long been the law that before a plaintiff may file a claim in federal court under Section 301, it first must exhaust the grievance and arbitration procedures found within the CBA to which the litigants are parties. See Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). However, \"arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.\" AT & T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)). \"[A] duty to arbitrate a particular grievance can stem only from a contractual agreement to arbitrate, and a determination of the scope of such a contractual term is peculiarly within the" }, { "docid": "15777651", "title": "", "text": "to allege a breach by the union of its duty of fair representation. For the reasons stated below, we affirm. An employee who claims a violation by his employer of the collective bargaining agreement is bound by the terms of that agreement as to the method of enforcing his claim. Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Harris v. Chemical Leaman Tank Lines, Inc., 437 F.2d 167, 170 (5th Cir. 1971). Ordi narily, he must exhaust the remedies provided in that agreement, but he may bring suit without exhaustion if he can fit within one of three exceptions to this general rule. No exhaustion is necessary if: (1) the union wrongfully refuses to process the employee’s grievance, thus violating its duty of fair representation, Vaca v. Sipes, supra; (2) the employer’s conduct amounts to a repudiation of the remedial procedures specified in the contract, id.; Boone v. Armstrong Cork Co., 384 F.2d 285 (5th Cir. 1967); or (3) exhaustion of contractual remedies would be futile because the aggrieved employee would have to submit his claim to a group “which is in large part chosen by the [employer and union] against whom [his] real complaint is made.” Glover v. St. Louis-S.F. Ry. Co., 393 U.S. 324, 330, 89 S.Ct. 548, 551, 21 L.Ed.2d 519 (1969). See generally Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870 (3d Cir. 1972). There is no doubt that plaintiff failed to exhaust his contractual remedies. His claim was processed through three stages of the grievance procedure, and at that point either the union or the employer could have taken the matter to arbitration, the final contractual remedy. Our inquiry, then, is whether any of the three exceptions apply. The first is inapplicable because Rabalais failed to allege that the union breached its duty of fair representation. Lomax v. Armstrong Cork Co., 433 F.2d 1277 (5th Cir. 1970). Similarly, the third exception does not apply, for plaintiff did not allege futility in his complaint. Moreover; under the collective bargaining agreement, the final decision was to be made by" } ]

[ { "docid": "3617576", "title": "", "text": "was violated when her attorney stipulated to the admission of evidence without her stated waiver of such right on the record. Her argument is based on Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938), and other cases holding that where a fundamental constitutional right is waived, the record must show a voluntary intentional waiver. A similar contention was exhaustively analyzed by this court in Wilson v. Gray, 345 F.2d 282 (9 Cir. 1965), where the court noted at 345 F.2d 286: “It has been consistently held that the accused may waive his right to cross examination and confrontation and that the waiver of this right may be accomplished by the accused’s counsel as a matter of trial tactics or strategy. E. g., Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912) . . After discussing the Supreme Court cases which established the guidelines for determining whether there has been an effective waiver of a federal constitutional right, the court concluded at 345 F.2d 290: “Variations in the factual context giving rise to the issue of waiver of any one right of the accused are infinite. Whether the waiver of a given right under the circumstances must be made by the accused personally or may be made by his counsel as a matter of trial strategy or tactics is necessarily an issue that must be resolved by the common law decision-making process, the process of inclusion and exclusion.” We find nothing in the more recent Supreme Court decisions cited by counsel on the issue of waiver which indicate that the admission of evidence by stipulation must be accompanied by a formal waiver from the defendant, and we decline to fashion such a rule. Our review of the trial record indicates that appellant’s strategy at the time of the trial was to challenge the legality of the telephone company’s investigation rather than the evidence supporting the charges. We see no deprivation of due process in counsel’s decision, without objection from appellant who was present when the stipulation was made," } ]

[ { "docid": "7056506", "title": "", "text": "the courtroom). The threshold issue on appeal is whether Gillenwater was denied the right to testify, and whether such denial constitutes re.versible error. We address that issue first and then turn to the waiver and harmless error issues. II. We review de novo a defendant’s claim that he was deprived of his constitutional right to testify. United States v. Pino-Noriega, 189 F.3d 1089, 1094 (9th Cir.1999); see United States v. Moreno, 102 F.3d 994, 998 (9th Cir.1996). We review for abuse of discretion the district court’s determination that Gillenwater waived his right to testify as a result of his disruptive conduct. See Illinois v. Allen, 397 U.S. 337, 347, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (presence at trial); United States v. Ives, 504 F.2d 935, 941-42 (9th Cir.1974) (right to testify at trial), vacated, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975), reinstated in relevant part, 547 F.2d 1100 (9th Cir.1976). Although a district judge has discretion to manage her courtroom, we look carefully at the denial of the right to testify because its loss is significant. See United States v. Hinkson, 585 F.3d 1247, 1260-63 (9th Cir.2009) (en banc) (defining our “abuse of discretion” standard and noting that when we review the application of law to facts, we review “questions that implicate constitutional rights” with less deference to the district court). The district court abuses its discretion when it commits legal error. Id. at 1261-62; see also United States v. Anekwu, 695 F.3d 967, 978 (9th Cir.2012); United States v. Aguilar-Ayala, 120 F.3d 176, 178-79 (9th Cir.1997). A. Congress has explicitly provided a defendant a statutory right to testify at a pretrial competency hearing. Title 18, Chapter 313 of the United States Code sets forth procedures for determining whether a criminal defendant is competent to stand trial. On its own motion, or on a motion by the defendant or the prosecutor, a court may order “a hearing to determine the mental competency of the defendant ... if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect" }, { "docid": "23339959", "title": "", "text": "Id. at 1076-77. It is not clear whether or not the dissent believes that the right to testify is “so central to an accurate determination of innocence or guilt,” id. at 1077, that retroactive application is justified. Even if, as the dissent ambiguously suggests, its proposed rule were prospective, it would have a serious impact on state prosecutions which could not be expected to adopt instantly the new rule of law. Common sense cries out against this conclusion. The dissent’s difficulty is in understanding how one can waive a personal and fundamental right by conduct. But the dissent accepts without batting an eye the common practice of inferring the waiver of the right to represent oneself from the conduct of the defendant appearing with counsel. E.g. United States v. Weisz, 718 F.2d 413, 425 (D.C.Cir.1983), cert. denied, 465 U.S. 1027, 1034, 104 S.Ct. 1285, 1305, 79 L.Ed.2d 668, 704 (1984); cf. Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir.1982) (en banc). In that practice there is no provision for ascertaining that the defendant knew he had the constitutional right to go it alone in court. Another analogy exists in the defendant’s right to confront the witnesses against him. This right is rooted in human nature, in ancient and long-standing legal practice, Coy v. Iowa, — U.S. —, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). It is expressly recognized by the Sixth Amendment. It has been characterized as a personal right. Faretta v. California, 422 U.S. 806, 819-20, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975); see also Milton v. Morris, 767 F.2d 1443, 1446 (9th Cir.1985). Indeed it has been paired with the right to testify in these terms: the defendant’s “right to testify and to confront personally the witnesses against him.” Taylor v. United States, 414 U.S. 17, 19, 94 S.Ct. 194-95, 38 L.Ed.2d 174 (1973). A major component of this right is the right of the defendant “to cross-examine the witnesses against him.” Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065-69, 13 L.Ed.2d 923 (1965); see also Coy v. Iowa, — U.S. —, 108 S.Ct." }, { "docid": "22075618", "title": "", "text": "testifying at trial constitutes a valid waiver, and what standard of proof the government must bear in proving that waiver. A waiver of a constitutional right is ordinarily valid only if there is “an intentional relinquishment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). A variety of actions by the accused constitute an express waiver of the right to confrontation. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (guilty plea); United States v. Stephens, 609 F.2d 230 (5th Cir. 1980) (stipulations to evidence). The accused, however, may also waive his confrontation rights indirectly, such as by absenting himself from trial, Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973), or engaging in contumacious conduct which requires his removal from the courtroom. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). We conclude that a defendant who causes a witness to be unavailable for trial for the purpose of preventing that witness from testifying also waives his right to confrontation under the Zerbst standard. A defendant who undertakes this conduct realizes that the witness is no longer available and cannot be cross-examined. Hence in such a situation the defendant has intelligently and knowingly waived his confrontation rights. The policy interests underlying the confrontation clause, moreover, mandate this result. We recognize that the right of confrontation is so fundamental to our concept of a fair trial that it is a privilege specifically guaranteed by the Constitution. Nevertheless, both Taylor and Allen indicate that the right is not absolute, and must give way at times to stronger state interests. Similarly, when confrontation becomes impossible due to the actions of the very person who would assert the right, logic dictates that the right has been waived. The law simply cannot countenance a defendant deriving benefits from murdering the chief witness against him. To permit such subversion of a criminal prosecution “would be contrary to public policy, common sense, and the underlying purpose of the confrontation clause,” United" }, { "docid": "11497132", "title": "", "text": "of the trial. After being informed of the Trial Judge’s ruling, Mr. Wilcox decided not to testify and the defense rested without presenting any evidence. Mr. Wilcox was convicted a second time and again was sentenced to a period of incarceration for four to ten years. Following unsuccessful post-trial motions, direct appeals and collateral attacks in the State courts, Mr. Wilcox filed the present Petition for Writ of Habeas Corpus in the United States District Court for the Eastern District of Pennsylvania. An evidentia-ry hearing was subsequently held on February 14, 1975. The District Judge granted the writ of habeas corpus concluding that Mr. Wilcox would have taken the stand had it not been for the Trial Judge’s ruling that if he did so, he would have to forego his constitutional right to counsel. The District Judge held that Mr. Wilcox had a constitutional right to take the stand and testify in his own behalf, which only he could waive. The District Judge further held that the conduct of Mr. Wilcox’s counsel and the rulings of the Trial Judge impinged upon that constitutional right and deprived the appellee of his fundamental right to a fair trial. The Commonwealth brought this appeal. The Commonwealth argues that the ap-pellee was not deprived of a fair trial, since Mr. Wilcox had no constitutional right to testify in his own behalf and since Ms. Temin, as a matter of trial strategy, waived the appellee’s statutory right to testify. II. As the District Judge reasoned, under the common law, criminal defendants were not competent to give sworn testimony in their own behalf. This disability has been removed by the enactment of federal and state laws granting the privilege of an accused to testify in his own defense. The right to testify is not specifically granted by the Constitution. Thus, if a defendant in a State court has a Federal constitutional right to testify, that guarantee must emanate from the due process requirements of the Fourteenth Amendment. See U.S. v. Ives, 504 F.2d 935 (9th Cir. 1974), vacated 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d" }, { "docid": "23339960", "title": "", "text": "he had the constitutional right to go it alone in court. Another analogy exists in the defendant’s right to confront the witnesses against him. This right is rooted in human nature, in ancient and long-standing legal practice, Coy v. Iowa, — U.S. —, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). It is expressly recognized by the Sixth Amendment. It has been characterized as a personal right. Faretta v. California, 422 U.S. 806, 819-20, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975); see also Milton v. Morris, 767 F.2d 1443, 1446 (9th Cir.1985). Indeed it has been paired with the right to testify in these terms: the defendant’s “right to testify and to confront personally the witnesses against him.” Taylor v. United States, 414 U.S. 17, 19, 94 S.Ct. 194-95, 38 L.Ed.2d 174 (1973). A major component of this right is the right of the defendant “to cross-examine the witnesses against him.” Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065-69, 13 L.Ed.2d 923 (1965); see also Coy v. Iowa, — U.S. —, 108 S.Ct. 2798, 2802-03, 101 L.Ed.2d 857 (1988). Day after day in the courts of the United States defense counsel make the decision not to cross-examine without first informing their clients that they have a fundamental constitutional right to insist upon cross-examination and without obtaining from their clients a formal written waiver of this constitutional right. How does a poor, uneducated, non-television-watching defendant know that he has a fundamental constitutional right that he is waiving when his lawyer declines to cross-examine? We assume, not unreasonably in our culture, that this right is so generally known that it is not necessary to inform the defendant of its existence. We also assume that by accepting counsel and not objecting in court to counsel’s action that the defendant waives this right when counsel waives it. It is crystal-clear that a defendant may waive the right by his conduct. United States v. Goldstein, 532 F.2d 1305, 1314-15 (9th Cir.), cert. denied, 429 U.S. 960, 97 S.Ct. 384, 50 L.Ed.2d 327 (1976). There is no requirement that the defendant be expressly advised" }, { "docid": "23497385", "title": "", "text": "of proving that: (1) counsel’s performance was deficient and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must point to errors or omissions in the record to establish his claim. United States v. Rogers, 769 F.2d 1418, 1424 (9th Cir.1985). De fendant does not contend that this record is sufficient, rather he requests that he have an opportunity to supplement it on remand to the district court. The customary procedure for claims of ineffective assistance of counsel in federal criminal trials is by collateral attack on the conviction under 28 U.S.C. § 2255 (1982). Id. at 1424-25; United States v. Birges, 723 F.2d 666, 670 (9th Cir.), cert. denied, 466 U.S. 943, 104 S.Ct. 1926, 80 L.Ed.2d 472 (1984) and 469 U.S. 863, 105 S.Ct. 200, 83 L.Ed.2d 131 (1984). In a section 2255 proceeding, a defendant may present new facts for the record. Appellant suggests no reason why the customary procedure should be rejected. His reliance on United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), is misplaced because Cronic remanded for the proper application of law to facts already ascertained, not for the development of a new factual record. Appellant does not raise any issue of law. He contends that he may not have waived his right to testify on his own behalf because he did not sign a written waiver. However, a waiver need not be written to be effective. See 18 U.S.C. § 3481 (1982) (authorizing accused to testify at his own request) (emphasis added); United States v. Systems Architects, Inc., 757 F.2d 373, 375-76 (1st Cir.), cert. denied, — U.S. -, 106 S.Ct. 139, 88 L.Ed.2d 115 (1985); see also United States v. Ives, 504 F.2d 935, 941 (9th Cir.1974) (holding that defendant can waive right to testify through contumacious conduct), vacated, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975); reinstated in relevant part and vacated in part, 547 F.2d 1100 (9th Cir.1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1130, 51 L.Ed.2d 554" }, { "docid": "7056537", "title": "", "text": "States v. Teague, 953 F.2d 1525, 1532 (11th Cir.1992) (en banc) (\"We now reaffirm that a criminal defendant has a fundamental constitutional right to testify in his or her own behalf at trial. This right is personal to the defendant and cannot be waived either by the trial court or by defense counsel.”); United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir.1987); United States v. Curtis, 742 F.2d 1070, 1076 (7th Cir.1984); United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 118-19 (3d Cir.1977). . \"[T]he Court has consistently taken the position that a waiver of a constitutional right or privilege will be measured against a higher standard than a waiver of a right or privilege not guaranteed by the Constitution.” Ives, 504 F.2d at 940 (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (\"It has been pointed out that courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights.” (footnote and internal quotation marks omitted))). . Unlike Gillenwater, some defendants will waive their right to testify at their competency hearings. If the district court ultimately concludes that a defendant is not competent to stand trial, this may cast doubt on the validity of the defendant’s earlier waiver. Cf. United States v. Joelson, 7 F.3d 174, 177 (9th Cir.1993) (holding that the defendant’s relinquishment of the right to testify at trial “must be knowing and intentional”). That concern does not arise here because Gillenwater did not waive his right to testify. We note, however, that different forms of competence may be required to validly waive rights at different stages of a criminal proceeding. See, e.g., Indiana v. Edwards, 554 U.S. 164, 178, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008) (holding that the Constitution permits states to insist upon representation by counsel for those competent enough to stand trial but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves). . In Ives, we assumed without deciding" }, { "docid": "22854071", "title": "", "text": "397 U.S. at 346-47, 90 S.Ct. at 1062-63 (implied waiver from disruptive behavior during trial). While only minimal knowledge on the part of the accused is required when waiver is implied from conduct, see Taylor, 414 U.S. at 19 & n. 3, 94 S.Ct. at 195 & n. 3; United States v. Mera, 921 F.2d 18, 20-21 (2d Cir.1990); see also Fed.R.Crim.P. 43(b)(1), different considerations apply when the waiver is expressly and properly made before the court, as hap pened in this case. In this circumstance, a waiver should not be accepted unless the court is satisfied that a defendant “actually does understand the significance and consequences of a particular decision and ... the decision is uncoerced.” Godinez, — U.S. at - n. 12, 113 S.Ct. at 2687 n. 12. Mason contends that it is not enough that a court inform the accused of the reasons he should attend the trial and encourage his attendance. He relies on Camley v. Cochran, 369 U.S. 506, 516-17, 82 S.Ct. 884, 890-91, 8 L.Ed.2d 70 (1962) (reversing conviction because defendant did not make knowing and intelligent waiver of his right to counsel), to support his claim that the trial court must specifically and formally advise the defendant that he has a constitutional right to attend trial and inquire whether he waives it. In Mason’s view, if formal instruction and inquiry were not made, we cannot affirm this conviction without “[presuming waiver from a silent record,” which Carnley forbids. Id. at 516, 82 S.Ct. at 890. Mason overstates Camley, which does not require that a trial court specifically advise the accused that his right derives from the Constitution. In fact, it even suggests that formal notice of the existence of constitutional procedural rights does not substitute for an understanding of the consequences of exercising them or not. Id. at 511, 82 S.Ct. at 888. In Carnley, the Supreme Court rejected the view that waiver of the right to counsel is implied when the accused appears without counsel and fails to request that counsel be assigned to him, particularly when the accused pleads guilty. Id." }, { "docid": "3815573", "title": "", "text": "ensure that he voluntarily, knowingly, and intelligently waived his right to counsel. We review the validity of a waiver of the right to counsel de novo. See United States v. Taylor, 113 F.3d 1136, 1140 (10th Cir.1997). The Sixth Amendment of the United States Constitution guarantees a right to counsel in criminal proceedings. See U.S. Const. amend. VI; United States v. Collins, 920 F.2d 619, 624 (10th Cir.1990). At the same time, a criminal defendant has a right under the Sixth Amendment to waive this right to counsel and conduct his own defense. See Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Taylor, 113 F.3d at 1140. This waiver will be valid only if it is “an intentional relinquishment or abandonment of a known right or privilege.” Id. (quotation marks omitted). Thus, the court must ensure that the waiver was voluntary, knowing, and intelligent. See id. “Ideally, the trial judge should conduct a thorough and comprehensive formal inquiry of the defendant on the record to demonstrate that the defendant is aware of the nature of the charges, the range of allowable punishments and possible defenses, and is fully informed of the risks of proceeding pro se.” United States v. Willie, 941 F.2d 1384, 1388 (10th Cir.1991) (citing Faretta, 422 U.S. at 835, 95 S.Ct. 2525); see also United States v. Padilla, 819 F.2d 952, 959 (10th Cir.1987). There are certain limited situations, however, where a waiver may be valid absent this inquiry by the court. We have previously warned that “[t]he right to make a knowing and intelligent waiver of the right to counsel does not grant the defendant license to play a cat and mouse game with the court, or by ruse or stratagem fraudulently seek to have the trial judge placed in a position where, in moving along the business of the court, the judge appears to be arbitrarily depriving the defendant of counsel.” United States v. Allen, 895 F.2d 1577, 1578 (10th Cir.1990) (quotation marks omitted). Accordingly, this Court has recognized that a defendant may waive his right to counsel by" }, { "docid": "13064528", "title": "", "text": "may cross-examine available witnesses and present matters on his own behalf. Art. 32(b), UCMJ. Although these procedural requirements are binding on the Government, “failure to follow them does not constitute jurisdictional error.” Art. 32(e), UCMJ. The executive rule implementing this article allows an accused to waive the investigation. Rule for Courts-Martial 405(k), Manual for Courts-Martial, United States (1998 ed.). However, it does not expressly require a personal election by the accused. The appellant maintains the pretrial investigation is not a mere formality, but a substantial right. United States v. Nichols, 8 C.M.A. 119, 124, 23 C.M.R. 343, 348, 1957 WL 4495 (1957). He argues that the denial of this right is per se prejudicial and that he need not show actual prejudice to obtain a reversal of his conviction. Although we were unable to find any published cases addressing whether or not the waiver of a pretrial investigation requires an accused’s personal election, we have in the past held that the better practice is to have a written waiver personally executed by the accused. United States v. Bell, No. 900649 (N.M.C.M.R. 31 Jul 1990)(unpublished op.); United States v. Graham, No. 860218 (N.M.C.M.R. 31 Oct. 1986)(unpublished op.); United States v. Harman, No. 860872 (N.M.C.M.R. 29 Aug. 1986)(unpublished op.). A defense counsel has an ethical duty to keep his client informed of developments in a ease, so the client can make informed decisions regarding the representation. American Bar Association (ABA) Standards for Criminal Justice, The Defense Function, Standard 4-3.8 (1993); accord Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)(noting counsel’s duty to “consult with the defendant on important decisions”). Assuming that defense counsel may not waive a pretrial investigation without obtaining his client’s consent to do so, civilian counsel erred when he executed the waiver, on 18 January 1998, without consulting with the appellant. This error, however, is not per se prejudicial. See United States v. Davis, 20 M.J. 61, 66 (C.M.A.1985)(holding that defense counsel’s supervisor should not have acted as pretrial investigating officer, but appellant’s conviction would not be reversed absent clear demonstration of prejudice);" }, { "docid": "7056505", "title": "", "text": "entered an order denying Gillenwater’s two pro se motions and declaring Gillenwater incompetent to stand trial, reiterating the court’s oral ruling and remanding him to the Attorney General’s custody for 60 days. The district court concluded: In light of Dr. Low’s report and testimony, the information present in the file in this matter, and the Court’s observation of Mr. Gillenwater’s behavior and demeanor in the courtroom, the Court finds that the preponderance of the evidence supports that Mr. Gillenwater “is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to ... assist properly in his defense.” 18 U.S.C. § 4241(d). The Court further finds that Defendant waived his continued presence at the hearing by persisting in disruptive behavior after the Court warned him that he could be removed for disruptive behavior and by the Defendant eventually declaring “remove me.” See Fed. R.Crim.P. 43(c)(1)(C) (a court may exclude a defendant from being present even at trial when he persists in disruptive conduct that justifies exclusion from the courtroom). The threshold issue on appeal is whether Gillenwater was denied the right to testify, and whether such denial constitutes re.versible error. We address that issue first and then turn to the waiver and harmless error issues. II. We review de novo a defendant’s claim that he was deprived of his constitutional right to testify. United States v. Pino-Noriega, 189 F.3d 1089, 1094 (9th Cir.1999); see United States v. Moreno, 102 F.3d 994, 998 (9th Cir.1996). We review for abuse of discretion the district court’s determination that Gillenwater waived his right to testify as a result of his disruptive conduct. See Illinois v. Allen, 397 U.S. 337, 347, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (presence at trial); United States v. Ives, 504 F.2d 935, 941-42 (9th Cir.1974) (right to testify at trial), vacated, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975), reinstated in relevant part, 547 F.2d 1100 (9th Cir.1976). Although a district judge has discretion to manage her courtroom, we look carefully at the denial of the right to testify" }, { "docid": "23573728", "title": "", "text": "States v. Smith, 523 F.2d 788 (5th Cir. 1975), cert. denied, 424 U.S. 973, 96 S.Ct. 1475, 47 L.Ed.2d 742 (1976); United States v. Guerrero-Peralta, 446 F.2d 876 (9th Cir. 1971). . See note 4, supra. . A recent development has, if anything, strengthened Home’s holding. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), in holding that the fourteenth amendment does not require states to provide twelve-person juries, cast doubt via broad dicta on whether the Constitution mandates twelve-person juries in federal court and perhaps overruled Patton sub silentio. Even if the number twelve is still constitutionally dictated, however, we find numerous circumstances in which actions by counsel to waive constitutional rights have bound their clients. See, e. g., Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (waiver by counsel of fourteenth amendment guarantee that accused cannot be compelled to stand trial in prison garb); Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965) (deliberate choice by counsel to delay objection to tainted evidence may waive defendant’s rights under the fourth amendment); Winters v. Cook, 489 F.2d 174 (5th Cir. 1973) (intentional, strategic waiver by counsel of defendant’s right to object to racial composition of jury). Winters relates a basic truth: we guard so zealously the right to counsel because most defendants are untutored in the law and are unqualified to conduct their own defense. It would be incongruous to reflexively allow a defendant such as Winters to void his conviction when his privately-employed lawyer did what he was retained to do — use his skill and knowledge of the law to further the best interests of his client — because the lawyer did not first reason out his every action with his client and obtain his knowing agreement. Id. at 177-78. Only where there is evidence of fraud or gross incompetence by an attorney— which is not an issue here — or where “an inherently personal right of fundamental importance is involved,” id. at 178, does the law require defendant to personally waive his or" }, { "docid": "12062405", "title": "", "text": "at 344, 90 S.Ct. at 1061. Counsel would read the quoted language to mean that when Blackie was excluded on the fourth day of his trial, he should have thereafter been brought back at least once a day to ascertain whether he would promise to behave properly and if he did so promise, he should then have been allowed to stay in the courtroom unless, and until, his next outbreak, ad infinitum. Allen contains no such requirement. As the Fourth Circuit has observed, “A court should, of course, vigilantly protect a defendant’s constitutional rights, but it was never intended that any of these rights be used as a ploy to frustrate the orderly procedures of a court in the administration of justice.” United States v. Lawrence, 605 F.2d 1321, 1325 (4th Cir.1979), cert. denied, 444 U.S. 1084, 100 S.Ct. 1041, 62 L.Ed.2d 770 (1980). See also United States v. Gipson, 693 F.2d 109 (10th Cir.1982) (“The right to retain counsel of one’s choice may not ‘be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same,’ ”); United States v. Hack, 782 F.2d 862 (10th Cir.1986), cert. denied, Owens v. United States, 476 U.S. 1184, 106 S.Ct. 2921, 91 L.Ed.2d 549 (1986) (general prohibition against use of shackles inappropriate to insure orderly progress of trial). Furthermore, the right to testify is not absolute, United States v. Panza, 612 F.2d 432, 438 (9th Cir.1979), and may be waived by “contumacious conduct.” United States v. Ives, 504 F.2d 935, 941 (9th Cir.1974), vacated 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975), reinstated in relevant part and vacated in part, 547 F.2d 1100 (9th Cir.1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1130, 51 L.Ed.2d 554 (1977). The right to confront witnesses and the Fifth Amendment right to due process may also be waived. United States v. Rouco, 765 F.2d 983 (11th Cir.1985). In the instant case, Blackie was given a warning on the first day of his trial. On the" }, { "docid": "22830961", "title": "", "text": "is reviewed de novo.” Triana v. United States, 205 F.3d 36, 40 (2d Cir.2000) (internal quotation marks and citations omitted). a) Waiver/Forfeiture As we noted in granting the COA, we have not yet decided whether a defendant waives or forfeits a claim that counsel prevented him or her from testifying by not objecting at trial. A defendant in a .criminal case has the right to testify on his own behalf. See Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). We have held that the right to testify is “personal” and, therefore, can be waived only by the defendant. Brown v. Artuz, 124 F.3d 73, 77 (2d Cir.1997). Thus, “regardless of strategic considerations that his lawyer concludes weigh against such a decision,” id., a defendant who wishes to testify must be permitted to do so. In Brmvn, we declined to require that trial courts generally inform defendants of the right to testify and determine whether they intend to waive that right. However, we did impose on defense counsel the obligation to inform their clients of that right and to ensure that clients understand that the ultimate decision belongs to them, not counsel. See id. at 79. We therefore found that the “burden of ensuring that the defendant is informed of the nature and existence of the right to testify ... is a component of the effective assistance of counsel.” Id. Brown did not, however, reach the question of whether a defendant who does not object at trial to being prevented from taking the stand thereby waives or forfeits the right to testify. Other circuits that have addressed this question have not reached uniform results. The Ninth Circuit has held that a defendant waives the right to testify by failing to notify the trial court of a desire to do so. See United States v. Martinez, 883 F.2d 750, 760 (9th Cir.1989), vacated on other grounds, 928 F.2d 1470 (9th Cir.1991). In that case, the court found that the defendant must have known of his right to testify because he was “[ejducated by television and past" }, { "docid": "23340010", "title": "", "text": "that he has a constitutional right to testify and that neither the court nor defense counsel can under ordinary circumstances prevent him from exercising that right. The defendant should also be informed that he has a constitutional right not to testify and that a decision to take the stand waives the privilege against self-incrimination. See Hollenbeck v. Estelle, 672 F.2d 451 (5th Cir.), cert. denied, 459 U.S. 1019, 103 S.Ct. 383, 74 L.Ed.2d 514 (1982); People v. Curtis, 681 P.2d 504, 514 (Colo.1984). The defendant should be questioned to ascertain whether he understands the ramifications of the decision to testify (i.e. that the prosecution can cross-examine and that he may be impeached by past criminal behavior or prior inconsistent statements). .Some courts have suggested that trial judges should make inquiry only upon some indication of conflict between a defendant and his counsel. See Siciliano v. Vose, 834 F.2d 29 (1st Cir.1987) This procedure is administratively cumbersome and would force complex inquiries into cause. Consequently, when a defendant closes his case without testifying, the district court, as a matter of practice, should inquire into personal waiver out of the presence of the jury. These procedures closely track the rule in most personal waiver contexts. See Curtis, 681 P.2d at 515. Cf. United States v. Ives, 504 F.2d 935, 939 (9th Cir.1974), vacated on other grounds, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975). . See Faretta, 422 U.S. at 830, 95 S.Ct. at 2538. . The majority also relies heavily on McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). Wiggins, however, dealt with a different question. In Wiggins, the defendant waived his right to counsel. As far as the record indicates, the trial court properly inquired whether the defendant made a knowing and intelligent waiver. Later, Wiggins allowed standby counsel to make several motions and argue the closing statement to the jury. Wiggins did not contend that the trial court erred in not making an extended inquiry into whether the defendant understood his right to self-representation. Consequently, the Court did not address that question." }, { "docid": "23339962", "title": "", "text": "of the right by the trial court. Taylor, 414 U.S. at 19, 94 S.Ct. at 195. There is no requirement that the defendant exerts a formal waiver of this right. Conduct alone — without proof of the defendant’s knowledge or formal intent to waive — suffices. Id. So, too, this circuit has already established that a criminal defendant’s right to testify may be waived by conduct. United States v. Ives, 504 F.2d 935, 941 (9th Cir.1974) (per Wallace, J.), vacated, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975), reinstated in part, vacated and remanded in part, 547 F.2d 1100 (9th Cir.1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1130, 51 L.Ed.2d 554 (1977). No inquiry was then held to be necessary to demonstrate that the defendant knew he was waiving a constitutional right, and the waiver was inferred to take place from conduct not addressed to the right. The court observed that it might infringe upon the privilege against self-incrimination for the prosecutor or court to inquire if the defendant wanted to testify. Id. at 940. The rationale of Ives was recently adopted by the First Circuit, declining to invalidate a state criminal trial because the judge did not ascertain whether or not the defendant knew he had a right to testify and did not ascertain whether or not the defendant wished to exercise that right. Siciliano v. Vose, 834 F.2d 29, 30-31 (1st Cir.1987). The argument based on danger to the privilege against self-incrimination does have a ready answer: the court could inquire of the defendant out of the presence of the jury. The defendant would not be prejudiced with the court, which is well aware of the defendant’s right not to testify; the jury would never hear the inquiry; there would be no interference with the privilege against self-incrimination. The obviousness of this answer suggests the Ives and Siciliano courts were more concerned with denying the need for formal inquiry of the defendant than they were in providing a rationale for the practice of not inquiring. In each case the court just did not believe that" }, { "docid": "23339961", "title": "", "text": "2798, 2802-03, 101 L.Ed.2d 857 (1988). Day after day in the courts of the United States defense counsel make the decision not to cross-examine without first informing their clients that they have a fundamental constitutional right to insist upon cross-examination and without obtaining from their clients a formal written waiver of this constitutional right. How does a poor, uneducated, non-television-watching defendant know that he has a fundamental constitutional right that he is waiving when his lawyer declines to cross-examine? We assume, not unreasonably in our culture, that this right is so generally known that it is not necessary to inform the defendant of its existence. We also assume that by accepting counsel and not objecting in court to counsel’s action that the defendant waives this right when counsel waives it. It is crystal-clear that a defendant may waive the right by his conduct. United States v. Goldstein, 532 F.2d 1305, 1314-15 (9th Cir.), cert. denied, 429 U.S. 960, 97 S.Ct. 384, 50 L.Ed.2d 327 (1976). There is no requirement that the defendant be expressly advised of the right by the trial court. Taylor, 414 U.S. at 19, 94 S.Ct. at 195. There is no requirement that the defendant exerts a formal waiver of this right. Conduct alone — without proof of the defendant’s knowledge or formal intent to waive — suffices. Id. So, too, this circuit has already established that a criminal defendant’s right to testify may be waived by conduct. United States v. Ives, 504 F.2d 935, 941 (9th Cir.1974) (per Wallace, J.), vacated, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975), reinstated in part, vacated and remanded in part, 547 F.2d 1100 (9th Cir.1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1130, 51 L.Ed.2d 554 (1977). No inquiry was then held to be necessary to demonstrate that the defendant knew he was waiving a constitutional right, and the waiver was inferred to take place from conduct not addressed to the right. The court observed that it might infringe upon the privilege against self-incrimination for the prosecutor or court to inquire if the defendant wanted to testify." }, { "docid": "23497386", "title": "", "text": "Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), is misplaced because Cronic remanded for the proper application of law to facts already ascertained, not for the development of a new factual record. Appellant does not raise any issue of law. He contends that he may not have waived his right to testify on his own behalf because he did not sign a written waiver. However, a waiver need not be written to be effective. See 18 U.S.C. § 3481 (1982) (authorizing accused to testify at his own request) (emphasis added); United States v. Systems Architects, Inc., 757 F.2d 373, 375-76 (1st Cir.), cert. denied, — U.S. -, 106 S.Ct. 139, 88 L.Ed.2d 115 (1985); see also United States v. Ives, 504 F.2d 935, 941 (9th Cir.1974) (holding that defendant can waive right to testify through contumacious conduct), vacated, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975); reinstated in relevant part and vacated in part, 547 F.2d 1100 (9th Cir.1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1130, 51 L.Ed.2d 554 (1977). To the extent that appellant maintains that he did not actually waive his right to testify or that his waiver was not knowing and voluntary and that he would have testified given the chance, these are issues of fact, which may be raised in a section 2255 proceeding. We therefore deny appellant’s request for a remand. CONCLUSION The district court’s rulings concerning the admission of evidence of the Tigard robbery, severance, the warrantless search of currency, the identifications, and written statements are affirmed. Defendant’s request for remand to the district court to determine whether he received ineffective assistance of counsel is denied. . Appellant contends that the issue is controlled by United States v. Green, 648 F.2d 587 (9th Cir.1981). Green is inapposite, however. In Green, the district court admitted evidence under Rule 404(b) on the ground that the evidence was relevant to knowledge, plan and motive. We affirmed the holding of the district court, but found the evidence admissible to prove opportunity. Because the district court never made a 404(b) ruling concerning opportunity," }, { "docid": "16786768", "title": "", "text": "of the sanction here imposed is sufficiently great to outweigh the modest inconvenience that my suggested restraint would impose. With respect to authority, I acknowledge that a defendant’s testimonial rights can be waived by conduct which prevents the orderly conduct of the trial. United States v. Ives, 504 F.2d 935, 941-42 (9th Cir. 1974), vacated and remanded for further consideration in light of Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975), reinstated in pertinent part, remanded in other part, 547 F.2d 1100 (9th Cir. 1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1130, 51 L.Ed.2d 554 (1977). See generally Wright v. Estelle, 572 F.2d 1071, 1084 (5th Cir.) (en banc) (Godbold, J., dissenting), cert. denied, 439 U.S. 1004, 99 S.Ct. 617, 58 L.Ed.2d 680 (1978); United States v. Bentvena, 319 F.2d 916, 942-44 (2d Cir.), cert. denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963). The government does not insist, however, that the contumaciousness of Panza threatened the orderly conduct of the trial. The vice in Panza’s position, as the majority points out, is that it severely limited the government’s right of cross-examination, not that it would threaten the orderly conduct of the trial. Moreover, I find inapposite the district court’s reliance on the following passage from 5 Wigmore on Evidence § 1391 at 137 (Chadbourn rev. 1974) (emphasis in original, footnotes omitted): Where the witness, after his examination in chief on the stand, has refused to submit to cross-examination, the opportunity for thus probing and testing his statements has substantially failed, and his direct testimony should be struck out. On the circumstances of the case, the refusal or evasion of answers to one or more questions only need not lead to this result. This passage, however, rests on cases in which the testimony of a prosecution wit-, ness who refused to submit to proper cross-examination was struck in order to preserve the defendant’s Sixth Amendment right of confrontation. The defendant, as a recalcitrant witness, presents an entirely different situation involving a different" }, { "docid": "19395323", "title": "", "text": "makes little difference on these facts that Evans expressed his willingness to answer questions alongside his unsolicited and inflammatory remarks about his attorney and the court. Witnesses-even criminal defendants at their own trials-cannot expect to testify if they announce an intention to follow the rules every now and then and openly flout them at other times. Evans had two options: he could follow the evidentiary rules and limit himself to relevant testimony, or he could elect not to testify at all. When he chose a third option-expressing his intention to continue to willfully ignore the rules despite the court's repeated warnings-he put himself at risk of losing his right to testify entirely. See, e.g. , United States v. Nunez , 877 F.2d 1475, 1478 (10th Cir. 1989) (\"[T]he right to testify is not absolute and may be waived by contumacious conduct.\" (internal quotation marks and citations omitted) ); United States v. Ives , 504 F.2d 935, 941-42 (9th Cir. 1974) (holding that a defendant may lose his right to testify due to disruptive conduct, because \"such conduct cannot be allowed when the defendant takes center stage on the witness stand\"), vacated on other grounds , 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975), opinion reinstated in relevant part , 547 F.2d 1100 (9th Cir 1976) (per curiam). See generally Illinois v. Allen , 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (\"We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case.\"). Of course, not every violation of the evidentiary rules or the court's instructions, no matter how accidental or trivial, justifies depriving a criminal defendant of the right to testify. To the contrary, forfeiture of the right should be limited to only the most defiant of defendants, and then only after the court explains the consequences of continued defiance. Cf. United States v. Hellems , 866 F.3d 856, 864-65 (8th Cir. 2017) (recognizing that a trial court must first warn a defendant before it can remove him from the courtroom for disruptive" } ]

[ { "docid": "22827762", "title": "", "text": "a \"relevant consideration.” USSG § 1B1.3 application note 9(B). As an example, the commentary cites a defendant's failure to file an income tax return in three consecutive years as part of the same course of conduct where the tax return is statutorily required at precise yearly intervals. We do not believe that the \"nature of the conduct” is a relevant inquiry in Mil-Ier's case. Although it is true that the \"nature” of Miller's conduct — trafficking in illegal drugs — is the same in all three incidences, the conduct does not involve the repetition of an identical act with precise regularity, as the commentary suggests would be necessary to find the \"same course of conduct” under a \"nature of the conduct” inquiry. .The marijuana incident at the border occurred nearly four years before Miller's offense of conviction; thus, it clearly does not satisfy the proximity requirement. His 1995 cocaine offense, however, occurred 21 months before his offense of conviction and is, therefore, a closer question. The longest time span between prior activity and an offense of conviction in a previous 5th Circuit case has been 18 months. See United States v. Robins, 978 F.2d 881, 890 (5th Cir.1992); see also United States v. Bryant, 991 F.2d 171, 177 (5th Cir.1993) (per curiam) (three months); Bethley, 973 F.2d at 400-01 (six months); United States v. Moore, 927 F.2d 825, 827-28 (5th Cir.1991) (five months); United States v. Mir, 919 F.2d 940, 943-45 (5th Cir.1990) (same). A sister circuit has ruled that activity separated by two or more years is temporally too remote. See United States v. Mankiewicz, 122 F.3d 399, 405 (7th Cir.1997) (ruling that drug transactions separated by a five-year hiatus were too remote to support the finding that the transactions constituted relevant conduct); United States v, Cedano-Rojas, 999 F.2d 1175, 1180 (7th Cir.1993) (finding that a two-year hiatus between the transactions did not lend itself to a finding of temporal proximity and noting that the court \"must be cautious and exacting in permitting such relatively stale dealings to be included in the same course of conduct as the offense" } ]

[ { "docid": "23020170", "title": "", "text": "district court's determination of what constitutes relevant conduct for purposes of sentencing is reviewed for clear error.”); United States v. Bryant, 991 F.2d 171, 177 (5th Cir. 1993) (\"[S]pecific factual findings regarding relevant conduct are reviewed on appeal only for clear error.”). . United States v. Sanders, 942 F.2d 894, 897 (5th Cir.1991). . U.S.S.G. § 2D1.1. . United States v. Moore, 927 F.2d 825, 827 (5th Cir.1991) (quoting United States v. Mir, 919 F.2d 940, 943 (5th Cir. 1990)) (internal quotation marks omitted); see id. (“To be considered as relevant conduct, drug related offenses need not result in the defendant’s conviction.”); United States v. Edwards, 911 F.2d 1031, 1033 (5th Cir.1990) (\"The district court can consider a broad range of conduct in assessing a defendant’s offense level under the guidelines and is not limited solely to the conduct for which the defendant is being sentenced.\"). . Wall, 180 F.3d at 644-45. . Bryant, 991 F.2d at 177. . U.S.S.G. § 1B1.3, cmt. n.9(A). . See United States v. Hill, 19 F.3d 1477, 1482 (6th Cir.1996) (collecting cases) (internal quotation marks omitted). . Wall, 180 F.3d at 645. . See United States v. Culverhouse, 507 F.3d 888, 895 (5th Cir.2007) (holding that two offenses were not part of a common scheme or plan when the offenses could only \"be connected by ... the most general of purposes, in that they both involved methamphetamine”). . U.S.S.G. § 1B1.3, cmt. n.9(B). . Id. . Id. . See Culverhouse, 507 F.3d at 896. . Moore, 927 F.2d at 828; see United States v. Santiago, 906 F.2d 867, 872-73 (2d Cir. 1990) (stating that there are no \"inherent limitations on the transactions to be considered”). . Wall, 180 F.3d at 646; see, e.g., Hill, 79 F.3d at 1484 (6th Cir. 1996) (\"[W]e find that temporal proximity is extremely weak in that nineteen months is an exceedingly long lapse between offenses.”); United States v. Maxwell, 34 F.3d 1006, 1011 (11th Cir.1994) (concluding that two offenses occurring more than a year apart were \"temporally remote\"). . See United States v. Booker, 334 F.3d 406, 414 (5th" }, { "docid": "20375588", "title": "", "text": "significant elements to be evaluated.” United States v. Roederer, 11 F.3d 973, 979-80 (10th Cir.1993); see also Svacina, 137 F.3d at 1182-83; U.S.S.G. § 1B1.3 cmt. n. 9(B) (“Factors that are appropriate to the determination of whether offenses are sufficiently connected or related to each other to be considered as part of the same course of conduct include the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses.”). Applying those three factors to this case leads us to conclude that Mr. Caldwell’s production of three ounces of crack qualified as relevant conduct under the guidelines. a. Temporal Proximity Mr. Caldwell was convicted of selling small amounts of drugs on three occasions: April 3, 2002, April 4, 2002, and May 23, 2005. Mr. Zales testified that Mr. Caldwell produced three ounces of crack in late 2006 or early 2007, about a year and a half after the conduct of conviction. Mr. Caldwell’s production of three ounces of crack was fairly remote from his conduct of conviction. However, this court has found that conduct occurring as much as seventeen months before the conduct of conviction could be proximate enough to justify its classification as relevant conduct under the guidelines. See United States v. Richards, 27 F.3d 465, 468-69 (10th Cir.1994). In Richards, this court found that the district court did not plainly err in concluding that heroin purchased from the defendant seventeen months before the offense of conviction qualified as relevant conduct under the Guidelines. The court noted that, although the relevant conduct took place a while before the conduct of conviction, the earlier sales involved a very regular course of conduct relating to the same drug, so his later sales qualified as relevant conduct. Id.; see also Roederer, 11 F.3d at 979-80 (holding that conduct occurring approximately five years before the offense of conviction constituted relevant conduct.where the conduct was very similar and there was evidence that the defendant had engaged in additional similar conduct in the time between these offenses). But cf. United States v. Culverhouse, 507 F.3d 888, 895-96" }, { "docid": "22210225", "title": "", "text": "considered relevant conduct). In two recent cases this court has found that the time interval between offenses is too remote to consider the extraneous offense to be relevant conduct. In both of those cases the offense of conviction took place more than a year in time from the offense in question. See United States v. Miller, 179 F.3d 961, 966 n. 10 (5th Cir.1999) (finding that a drug offense that occurred 21 months prior to the offense of conviction was too remote in time to be considered a positive factor for same course of conduct); Wall, 180 F.3d 641, 645-46 (5th Cir.1999) (finding that drug offenses separated by four and five years lacked temporal proximity to the offense of conviction). In the present case, because the offense of conviction and the November 1997 offense took place within seven months of each other there is sufficient temporal proximity to find that the offenses were part of the same course of conduct. Finally, the third factor of regularity of the offenses is also present. Cervantes and Flores testified that Ocana recruited them for trips in July, September and November. Therefore, Ocana was participating in drug transactions bimonthly. Based on the close temporal proximity and regularity of the offenses the district court did not clearly err in finding that the April 1997 offense and the offenses involving Cervantes and Flores were part of the same course of conduct. Ocana relies on our decision in United States v. Lara, 975 F.2d 1120, 1128 (5th Cir.1992), for the proposition that a sentencing enhancement for post-conviction conduct should be applied to the crime committed while on release and not the original crime for which the defendant is currently being sentenced. However, in Lara the sentence enhancements were made by the district court pursuant to 18 U.S.C. § 3147 and USSG § 2J1.7, not under USSG § 1B1.3 which allows for adjustment of base offense level for post conviction conduct under certain circumstances. At the sentencing hearing the district court heard and weighed the testimony of Agent Andrews, Cervantes, and Flores and concluded that Ocana’s alleged participation" }, { "docid": "23643709", "title": "", "text": "state tax evasion satisfied the element of temporal proximity for purposes of including it as relevant conduct because it occurred during the same period of time as the federal tax evasion for which defendant was convicted), cert. denied, — U.S. -, 118 S.Ct. 1082, 140 L.Ed.2d 139 (1998); Bryant, 991 F.2d at 177 (finding temporal proximity of approximately two months helped support district court’s relevant conduct finding in drug distribution ease); United States v. Bethley, 973 F.2d 396, 400-01 (5th Cir.1992) (finding that cocaine distribution activity that occurred monthly for the six months preceding the offense of conviction could be considered relevant conduct); Moore, 927 F.2d at 826, 828 (finding that amphetamine seized five months prior to offense of conviction could be considered relevant conduct). Various courts have found that a period of separation of over one year negated or weighed against the temporal proximity of the offenses. See Hill, 79 F.3d at 1484; United States v. Maxwell, 34 F.3d 1006, 1011 (11th Cir.1994). We conclude that temporal proximity is lacking in this case. Where the temporal proximity of the offenses is nonexistent, the other factors must be stronger. See U.S. Sentencing Guidelines Manual § 1B1.3 application note 9(B) (“[W]here the conduct alleged to be relevant is relatively remote to the offense of conviction, a stronger showing of similarity or regularity is necessary to compensate for the absence of temporal proximity.”). We must therefore consider “ ‘whether there are distinctive similarities between the offense of conviction and the remote conduct that signal that they are part of a single course of conduct rather than isolated, unrelated events that happen only to be similar in kind.’ ” Maxwell, 34 F.3d at 1011 (quoting United States v. Sykes, 7 F.3d 1331, 1336 (7th Cir.1993)). We conclude that there are significant differences between the 1992 offense and the 1996 and 1997 offenses. Notably, there is no evidence that the marijuana that formed the basis for the 1996 and 1997 offenses shared a common source, supplier, or destination with the marijuana involved in the 1992 offense. Cf. United States v. Jackson, 161 F.3d 24," }, { "docid": "22203326", "title": "", "text": "conduct seven months before the offense of conviction was too remote), cert. denied, 502 U.S. 871, 112 S.Ct. 205, 116 L.Ed.2d 164 (1991). Although there is no bright-line rule defining what constitutes “the same course of conduct or common scheme or plan as the offense of conviction,” the guidelines prescribe a sliding scale approach, i.e., where one of the factors is weak or absent, there must be a substantially stronger showing of at least one other factor. See Hahn, 960 F.2d at 911 (“When one component is absent, however, courts must look for a stronger presence of at least one of the other components.”). In Hahn, the Ninth Circuit held that a five-month gap between two instances of “conduct” was “relatively remote” and would require a stronger showing of similarity and regularity in order to constitute relevant conduct. Hahn, 960 F.2d at 910-11 (“Regularity is wanting in the case of a solitary, temporally remote event, and therefore such an event cannot constitute relevant conduct without a strong showing of substantial similarity.”). See also Sykes, 7 F.3d at 1337 (reversing the district court’s finding that the fraudulent credit application underlying a dismissed count, which occurred fourteen months after the offense of conviction, constituted relevant conduct); Mullins, 971 F.2d at 1144 (finding temporal proximity “extremely weak” where uncharged conduct occurred six months prior to offense of conviction); United States v. Jones, 948 F.2d 732, 737-38 (D.C.Cir.1991) (ruling that embezzlement from an art gallery that occurred over one year before embezzlement from a mailbag was not part of same course of conduct or common plan). Generally, where two isolated drug transactions are separated by more than one year, a “relevant conduct” finding may not be premised on the sole similarity that both transactions involved the same type of drug. Analyzing the factors in the instant case, we find that temporal proximity is extremely weak in that nineteen months is an exceedingly long lapse between offenses. Regularity is completely absent here, for the government proved only one prior offense. Therefore, the government was required to compensate for the weakness of the temporal and regularity" }, { "docid": "20375590", "title": "", "text": "(5th Cir.2007) (holding that “temporal proximity was lacking” where the additional conduct took place three years before the offense of conviction). Further, although Mr. Caldwell’s production of three ounces of crack was fairly remote from his conduct of conviction, where, as here, the offenses of conviction took place over a long period of time, the court is willing to extend the time frame for what qualifies as relevant conduct. Mr. Caldwell’s offenses of conviction spanned more than three years. In that context, his additional conduct a year and a half later is not very remote from his conduct of conviction. Further, the similarity of these offenses helps overcome any weakness in the temporal connection between these events. Cf. United States v. Phillips, 516 F.3d 479, 484-85 (6th Cir.2008) (holding that defendant’s possession of firearms in 2002 and 2006 could be used to enhance a sentence based on his conviction for possession of a firearm in 2004 “because there is substantial similarity between the offending incidents and because [the defendant] indicated that he carried firearms regularly”); United States v. Pauley, 289 F.3d 254, 259 (4th Cir.2002), (noting that an offense occurring more than six months before the offense of conviction is “somewhat remote,” but concluding that the offenses were very regular and extremely similar, so they could still constitute relevant conduct), modified on other grounds by 304 F.3d 335 (4th Cir.2002); see generally United States v. Hill, 79 F.3d 1477, 1484 (6th Cir.1996) (noting that in making determinations of whether conduct is “relevant,” courts have applied “a sliding scale approach, i.e., where one of the factors is weak or absent, there must be a substantially stronger showing of at least one other factor”). b. Regularity Mr. Caldwell’s conduct of conviction was not very regular. He sold drugs to an undercover officer on two separate occasions in April 2002, and was found with drugs he intended to sell in May 2005. However, the government also presented evidence from informants indicating that Mr. Caldwell regularly sold drugs from 2002-2005. Although the district court did not ultimately rely on this evidence to increase the" }, { "docid": "22203325", "title": "", "text": "cocaine. Id. at 413-14. Other circuits have also found that the Sentencing Guidelines impose no precise amount of time after which prior conduct is too remote to be considered “relevant conduct” under section 1B1.3. For example, in United States v. Santiago, 906 F.2d 867 (2d Cir.1990), the Second Circuit stated that “whether two or more transactions may be considered part of the same course of conduct is not determined by temporal proximity alone,” and it affirmed the district court’s “relevant conduct” finding with respect to conduct that occurred eight months before the offense of conviction at the same place and involving the same modus operandi as twelve prior sales. Id. at 872. However, the Santiago court specifically noted that eight months “is considerably longer than the periods involved in most of [its] prior cases construing the Guidelines, especially those focusing on offenses other than conspiracy.” Id. See also United States v. Moore, 927 F.2d 825, 828 (5th Cir.1991) (stating that the “guidelines impose no temporal restrictions on validly-obtained, relevant evidence” and rejecting appellant’s argument that conduct seven months before the offense of conviction was too remote), cert. denied, 502 U.S. 871, 112 S.Ct. 205, 116 L.Ed.2d 164 (1991). Although there is no bright-line rule defining what constitutes “the same course of conduct or common scheme or plan as the offense of conviction,” the guidelines prescribe a sliding scale approach, i.e., where one of the factors is weak or absent, there must be a substantially stronger showing of at least one other factor. See Hahn, 960 F.2d at 911 (“When one component is absent, however, courts must look for a stronger presence of at least one of the other components.”). In Hahn, the Ninth Circuit held that a five-month gap between two instances of “conduct” was “relatively remote” and would require a stronger showing of similarity and regularity in order to constitute relevant conduct. Hahn, 960 F.2d at 910-11 (“Regularity is wanting in the case of a solitary, temporally remote event, and therefore such an event cannot constitute relevant conduct without a strong showing of substantial similarity.”). See also Sykes, 7" }, { "docid": "22210224", "title": "", "text": "Ocana in July 1997, and that they made two other trips in September and November. Therefore these offenses took place only three months after Ocana’s offense of conviction. It appears that the only time there was no drug activity was the time between Oca-na’s arrest in April and her guilty plea in July. Even if we discount the testimony of Cervantes and Flores about the incidents that were not disclosed until the day of the sentencing hearing , and consider only the November 1997 offense, at the most only seven months elapsed between Ocana’s offense of conviction and this November 1997 offense. It is well settled in this circuit that offenses which occur within one year of the offense of conviction may be considered relevant conduct for sentencing. See United States v. Bethley, 973 F.2d 396, 400-01 (5th Cir.1992) (finding drug transactions that occurred six months prior to the offense of conviction to be relevant conduct); United States v. Moore, 927 F.2d 825, 828 (5th Cir.1991) (drugs seized five months prior to conviction could be considered relevant conduct). In two recent cases this court has found that the time interval between offenses is too remote to consider the extraneous offense to be relevant conduct. In both of those cases the offense of conviction took place more than a year in time from the offense in question. See United States v. Miller, 179 F.3d 961, 966 n. 10 (5th Cir.1999) (finding that a drug offense that occurred 21 months prior to the offense of conviction was too remote in time to be considered a positive factor for same course of conduct); Wall, 180 F.3d 641, 645-46 (5th Cir.1999) (finding that drug offenses separated by four and five years lacked temporal proximity to the offense of conviction). In the present case, because the offense of conviction and the November 1997 offense took place within seven months of each other there is sufficient temporal proximity to find that the offenses were part of the same course of conduct. Finally, the third factor of regularity of the offenses is also present. Cervantes and Flores" }, { "docid": "23020172", "title": "", "text": "Cir.2003). Compare Culverhonse, 507 F.3d at 896 (concluding that temporal proximity was lacking when offenses were separated by almost three years), and United States v. Miller, 179 F.3d 961, 966 (5th Cir. 1999) (holding that offenses separated by 21 months were temporally remote), with Bryant, 991 F.2d at 177 (concluding that temporal proximity of roughly two months supported district court's finding of relevant conduct), and Moore, 927 F.2d at 826, 828 (holding that amphetamines seized five months prior to offense of conviction could be considered relevant conduct). But see United States v. Robins, 978 F.2d 881, 890 (5th Cir. 1992) (concluding that \"a hiatus of approximately one and one half years\" did not render prior \"similar transactions” irrelevant for sentencing purposes). . 179 F.3dat966, 967 n. 10. . As stated above, the Fish Bowl investigation culminated in a large-scale drug raid on May 17, 2006, but the informant on whose statement the probation officer relied indicated that he had stopped cooking crack cocaine for Rhine by approximately January 2006. Therefore, depending on which source one credits, Rhine’s participation in the Fish Bowl drug-trafficking ring ended some time between January and May 2006, meaning that at least 17 months — and as many as 22 months — separate Rhine’s earlier conduct from his offense of conviction. . See Moore, 927 F.2d at 828 (finding that intervening arrest for marijuana possession helped connect defendant's earlier drug activity to his offense of conviction such that the earlier drug activity could be considered relevant conduct). . See Culverhouse, 507 F.3d at 896 (\"However, a failure in temporal proximity does not, by itself, prevent a finding of relevant conduct.”). . See United States v. Cedano-Rojas, 999 F.2d 1175, 1180 (7th Cir.1993). . Id. . Id. at 1177-78. . id. at 1180. . Id. at 1180-81. . Id. . Culverhouse, 507 F.3d at 896 (internal quotation marks and citation omitted). . See Wall, 180 F.3d at 646-47 (quoting United States v. Mullins, 971 F.2d 1138, 1145 (4th Cir.1992)). . Id. at 646. . See Culverhouse, 507 F.3d at 896 (“Nor is there any evidence that the" }, { "docid": "23213751", "title": "", "text": "have held that temporal gaps as brief as five months cut against a finding that an activity was part of the same course of conduct as the offense of conviction. See United States v. Hahn, 960 F.2d 903, 910-11 (9th Cir.1992) (five-month gap is “relatively remote”); See also United States v. McGowan, 478 F.3d 800, 802 (7th Cir.2007) (eight-month “gap is long enough to cast doubt on the relevance of the earlier conduct”); United States v. Ortiz, 431 F.3d 1035, 1041 (7th Cir.2005) (ten-month “gap suggests the lack of a common plan or course of conduct”); United States v. Mullins, 971 F.2d 1138, 1144 (4th Cir.1992) (temporal proximity factor “extremely weak ... if present at all, as the uncharged conduct took place over six months prior to the two phone calls underlying the offense of conviction”). And courts have repeatedly held that temporal proximity is lacking or that conduct is very remote when the interval exceeds one year. See United States v. Kulick, 629 F.3d 165, 171, 172 (3d Cir.2010) (twenty-seven month interval is “substantial” and “temporally remote”); Hill, 79 F.3d at 1484 (“[W]e find that temporal proximity is extremely weak in that nineteen months is an exceedingly long lapse between offenses.”); United States v. Sykes, 7 F.3d 1331, 1337 (7th Cir.1993) (temporal gap of fourteen months “tends to indicate conduct that can easily be separated into discrete, identifiable units rather than behavior that is part of the same course of conduct” (quotation omitted)). The Fifth Circuit accurately summarized the bulk of the case law in stating: “Various courts have found that a period of separation of over one year negated or weighed against [a finding of] temporal proximity.” United States v. Wall, 180 F.3d 641, 646 (5th Cir.1999). With this consensus in mind, it clearly follows that the thirteen-year interval between the 1990 transaction and Damato’s offense of conviction is extraordinary. Given this extreme lack of temporal proximity, the 1990 transaction may not be treated as relevant conduct unless one of the other factors— regularity or similarity — is “authoritatively present.” United States v. Miller, 179 F.3d 961, 967" }, { "docid": "23020171", "title": "", "text": "Cir.1996) (collecting cases) (internal quotation marks omitted). . Wall, 180 F.3d at 645. . See United States v. Culverhouse, 507 F.3d 888, 895 (5th Cir.2007) (holding that two offenses were not part of a common scheme or plan when the offenses could only \"be connected by ... the most general of purposes, in that they both involved methamphetamine”). . U.S.S.G. § 1B1.3, cmt. n.9(B). . Id. . Id. . See Culverhouse, 507 F.3d at 896. . Moore, 927 F.2d at 828; see United States v. Santiago, 906 F.2d 867, 872-73 (2d Cir. 1990) (stating that there are no \"inherent limitations on the transactions to be considered”). . Wall, 180 F.3d at 646; see, e.g., Hill, 79 F.3d at 1484 (6th Cir. 1996) (\"[W]e find that temporal proximity is extremely weak in that nineteen months is an exceedingly long lapse between offenses.”); United States v. Maxwell, 34 F.3d 1006, 1011 (11th Cir.1994) (concluding that two offenses occurring more than a year apart were \"temporally remote\"). . See United States v. Booker, 334 F.3d 406, 414 (5th Cir.2003). Compare Culverhonse, 507 F.3d at 896 (concluding that temporal proximity was lacking when offenses were separated by almost three years), and United States v. Miller, 179 F.3d 961, 966 (5th Cir. 1999) (holding that offenses separated by 21 months were temporally remote), with Bryant, 991 F.2d at 177 (concluding that temporal proximity of roughly two months supported district court's finding of relevant conduct), and Moore, 927 F.2d at 826, 828 (holding that amphetamines seized five months prior to offense of conviction could be considered relevant conduct). But see United States v. Robins, 978 F.2d 881, 890 (5th Cir. 1992) (concluding that \"a hiatus of approximately one and one half years\" did not render prior \"similar transactions” irrelevant for sentencing purposes). . 179 F.3dat966, 967 n. 10. . As stated above, the Fish Bowl investigation culminated in a large-scale drug raid on May 17, 2006, but the informant on whose statement the probation officer relied indicated that he had stopped cooking crack cocaine for Rhine by approximately January 2006. Therefore, depending on which source one" }, { "docid": "22827751", "title": "", "text": "ongoing series of offenses.” USSG § 1B1.3 application note 9(B). In determining sufficient connection, a court may consider, inter alia, the following factors: (1) the degree of similarity between the offenses; (2) the regularity or repetitions of the offenses; and (3) the time interval between the offenses. See id.; see also United States v. Hahn, 960 F.2d 903, 910-11 (9th Cir.1992) (applying the factors). According to the commentary and those cases that have addressed the issue, “[w]hen one of the above factors is absent, a stronger presence of at least one of the other factors is required.” USSG § 1B1.3 application note 9(B); see United States v. Bethley, 973 F.2d 396, 401 (5th Cir.1992); Hahn, 960 F.2d at 910-11. Since both of Miller’s prior drug activities are relatively remote in time from the offense of conviction, “a stronger showing of similarity or regularity is necessary to compensate for the absence of temporal proximity” in order for the offenses to be part of the “same course of conduct.” USSG § 1B1.3 application note 9(B); Bethley, 973 F.2d at 401; Hahn, 960 F.2d at 910-11. As we will explain, because neither of these factors weighs heavily in favor of the Government, the district court erred in considering Miller’s prior drug activities to be relevant conduct. (a) As for the marijuana incident, there were no similarities between it and the offense of conviction, apart from the fact that the offenses involved drugs and that Miller’s son was present. The marijuana incident involved Miller’s following a motor home that contained marijuana into the United States, while his offense of conviction involved the selling of cocaine out of Miller’s place of business. Additionally, the two events, separated as they are by time and circumstances, cannot be considered repetitious or regular conduct to a degree significant enough to constitute sufficient connection under the Guidelines. Consequently, Miller was not required to provide the Government with information relating to the marijuana incident. (b) Although the 1995 cocaine incident and the offense of conviction both involved cocaine, the two events are not sufficiently connected to justify finding that they" }, { "docid": "23213750", "title": "", "text": "with temporal proximity. Damato was convicted of engaging in a conspiracy that began in or about December 2003. McPherson and Livingston attempted to purchase 1200 pounds of marijuana in January 1990, more than thirteen years prior to the offense of conviction. As the government acknowledged at oral argument, treating conduct separated by that length of time as part of the same course of conduct would be unprecedented. None of the cases cited by the government contain such a lengthy gap between potentially relevant conduct and the crime of conviction, nor have we discovered any in our independent research. In fact, we have been unable to uncover a case holding that conduct even half as temporally distant qualifies as relevant conduct. The largest time difference we have observed in the case law is the five-year interval at issue in Roederer, 11 F.3d 973. Further, the five-year delay in Roederer appears to be an outlier. We have described a “fifteen month interval” as “temporally distant.” United States v. Clark, 415 F.3d 1234, 1242 (10th Cir.2005). Other circuits have held that temporal gaps as brief as five months cut against a finding that an activity was part of the same course of conduct as the offense of conviction. See United States v. Hahn, 960 F.2d 903, 910-11 (9th Cir.1992) (five-month gap is “relatively remote”); See also United States v. McGowan, 478 F.3d 800, 802 (7th Cir.2007) (eight-month “gap is long enough to cast doubt on the relevance of the earlier conduct”); United States v. Ortiz, 431 F.3d 1035, 1041 (7th Cir.2005) (ten-month “gap suggests the lack of a common plan or course of conduct”); United States v. Mullins, 971 F.2d 1138, 1144 (4th Cir.1992) (temporal proximity factor “extremely weak ... if present at all, as the uncharged conduct took place over six months prior to the two phone calls underlying the offense of conviction”). And courts have repeatedly held that temporal proximity is lacking or that conduct is very remote when the interval exceeds one year. See United States v. Kulick, 629 F.3d 165, 171, 172 (3d Cir.2010) (twenty-seven month interval is “substantial”" }, { "docid": "23213752", "title": "", "text": "and “temporally remote”); Hill, 79 F.3d at 1484 (“[W]e find that temporal proximity is extremely weak in that nineteen months is an exceedingly long lapse between offenses.”); United States v. Sykes, 7 F.3d 1331, 1337 (7th Cir.1993) (temporal gap of fourteen months “tends to indicate conduct that can easily be separated into discrete, identifiable units rather than behavior that is part of the same course of conduct” (quotation omitted)). The Fifth Circuit accurately summarized the bulk of the case law in stating: “Various courts have found that a period of separation of over one year negated or weighed against [a finding of] temporal proximity.” United States v. Wall, 180 F.3d 641, 646 (5th Cir.1999). With this consensus in mind, it clearly follows that the thirteen-year interval between the 1990 transaction and Damato’s offense of conviction is extraordinary. Given this extreme lack of temporal proximity, the 1990 transaction may not be treated as relevant conduct unless one of the other factors— regularity or similarity — is “authoritatively present.” United States v. Miller, 179 F.3d 961, 967 n. 10 (5th Cir.1999); See U.S.S.G. § 1B1.3 app. n. 9(B) (‘When one of the above factors is absent, a stronger presence of at least one of the other factors is required.”). 2 The government has not made such a showing with respect to regularity. “To determine whether ‘regularity’ is present, we inquire whether there is evidence of a regular, i.e., repeated, pattern of similar unlawful conduct” between “the purported relevant conduct and the offense of conviction.” United States v. Rhine, 583 F.3d 878, 889-90 (5th Cir.2009). The government presented a great deal of regularity evidence for the time period during the charged conspiracy. Its spreadsheet contains seventeen transactions between “late 2003” and November 2006. Fourteen of these transactions occurred between February 2004 and November 2006. Each of the transactions included between 100 and 200 pounds of marijuana being driven across the country. However, evidence regarding Damato’s activities between 1990 and 2003 is exceedingly sparse. Bower claimed that he delivered marijuana on Damato’s behalf five or six times between 1990 and 1995, when Bower was" }, { "docid": "22210223", "title": "", "text": "offense Ocana claimed to be transporting drugs at the behest of Keenan Bennet, and informed the FBI that she had met Bennet through a lawyer named Bob Meier. In the Cervantes and Flores offenses they claim that Ocana recruited them to transport drugs and that the other person involved in the transaction was a car wash owner named Aaron Munoz. The modus operandi for the offenses is also different. In April 1997, Ocana drove a van and met Bennet at an airport. In the Cervantes and Flores offenses they drove a rented van to a hotel and Ocana flew and met them at the hotel in Florida. Based on all of these factors the April 1997 offense and the Cervantes/Flores offenses are not sufficiently similar. Therefore, one of the other factors in determining same course of conduct; temporal proximity of the offenses, or regularity of the offenses must be stronger. In the present case, there is close temporal proximity of the offenses. Cervantes and Flores claim that they made their first trip transporting drugs for Ocana in July 1997, and that they made two other trips in September and November. Therefore these offenses took place only three months after Ocana’s offense of conviction. It appears that the only time there was no drug activity was the time between Oca-na’s arrest in April and her guilty plea in July. Even if we discount the testimony of Cervantes and Flores about the incidents that were not disclosed until the day of the sentencing hearing , and consider only the November 1997 offense, at the most only seven months elapsed between Ocana’s offense of conviction and this November 1997 offense. It is well settled in this circuit that offenses which occur within one year of the offense of conviction may be considered relevant conduct for sentencing. See United States v. Bethley, 973 F.2d 396, 400-01 (5th Cir.1992) (finding drug transactions that occurred six months prior to the offense of conviction to be relevant conduct); United States v. Moore, 927 F.2d 825, 828 (5th Cir.1991) (drugs seized five months prior to conviction could be" }, { "docid": "22210226", "title": "", "text": "testified that Ocana recruited them for trips in July, September and November. Therefore, Ocana was participating in drug transactions bimonthly. Based on the close temporal proximity and regularity of the offenses the district court did not clearly err in finding that the April 1997 offense and the offenses involving Cervantes and Flores were part of the same course of conduct. Ocana relies on our decision in United States v. Lara, 975 F.2d 1120, 1128 (5th Cir.1992), for the proposition that a sentencing enhancement for post-conviction conduct should be applied to the crime committed while on release and not the original crime for which the defendant is currently being sentenced. However, in Lara the sentence enhancements were made by the district court pursuant to 18 U.S.C. § 3147 and USSG § 2J1.7, not under USSG § 1B1.3 which allows for adjustment of base offense level for post conviction conduct under certain circumstances. At the sentencing hearing the district court heard and weighed the testimony of Agent Andrews, Cervantes, and Flores and concluded that Ocana’s alleged participation in drug transactions involving Cervantes and Flores were part of the same course of conduct as the offense of conviction. After a careful review of the record we conclude that the district court’s finding was not clearly erroneous. Thus, based on the finding that the post conviction conduct was relevant conduct under § 1B1.3 the district court properly applied the guidelines and adjusted Ocana’s base offense level upward to include the marihuana found in the possession of Cervantes and Flores in November 1997. C. Role in the Offense The district court also adopted the PSR’s recommendation that Ocana receive a two-level upward adjustment for role in the offense. The original PSR contained no adjustment for role in the offense. The probation officer added this recommendation for a two level enhancement based solely on Ocana’s post-conviction conduct. The appellant argues that the district court erred in determining her role in the offense based solely on the facts of the November 1997 offense which as post-conviction conduct had no connection to the offense for which she was" }, { "docid": "1527883", "title": "", "text": "governs this issue. It mandates that: [T]he base offense level where the guideline specifies more than one base offense level ... shall be determined on the basis of the following: (2) solely with respect to offenses of a character for which § 3D 1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction. We must therefore determine whether the district court clearly erred in finding that Bethley distributed the 30 ounces of cocaine as part of “the same course of conduct or part of a common scheme or plan as the count of conviction.” United States v. Byrd, 898 F.2d 450, 452 (5th Cir.1990). To qualify as relevant conduct, the prior conduct must pass the test of similarity, regularity and temporal proximity. United States v. Hahn, 960 F.2d 903, 910 (9th Cir.1992). In other words, there must be “ ‘sufficient similarity and temporal proximity to reasonably suggest that repeated instances of criminal behavior constitute a pattern of criminal conduct.’ ” United States v. Santiago, 906 F.2d 867, 872 (2d Cir.1990) (quoting William W. Wilkins, Jr. and John R. Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines, 41 S.C.L.Rev. 495, 515-16 (1990)). “When one component is absent, ... courts must look for a stronger presence of at least one of the other components.” Hahn, 960 F.2d at 910. Bethley’s cocaine distribution activities took place within six months of the offense for which he was convicted. Moreover, those activities were of a continuous nature. The quantities involved were similar — ounce quantities. Finally, the source and type of drug were the same. The district court’s conclusion that Bethley’s distribution of 30 ounces of cocaine was relevant conduct to his offense of conviction is not clearly erroneous. See United States v. Moore, 927 F.2d 825 (5th Cir.), cert. denied, — U.S.-, 112 S.Ct. 205, 116 L.Ed.2d 164 (1991). B. Bethley argues next that his participation in the offense for which he was convicted was minimal, or at least minor. He" }, { "docid": "23643708", "title": "", "text": "of the “same course of conduct” as the 1992 offense. U.S. Sentencing Guidelines Manual § 1B1.3 application note 9(B). As described above, this depends on “the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses.” Id. The time interval between the 1992 offense and the 1996 and 1997 offenses is considerable. No evidence in the record indicates that Wall continued his drug activities between his 1992 arrest and the offenses involving Friesen which began in early 1996. Cf. Moore, 927 F.2d at 828 (finding that intervening arrest for marijuana possession helped connect defendant’s earlier drug activity to his offense of conviction such that the earlier drug activity could be considered relevant conduct). Although “[tjhere is no separate statute of limitations beyond which relevant conduct suddenly becomes irrelevant,” id., we find that the incidents in the instant case are separated by an unprecedented lapse of time for a case involving drug distribution. Cf. United States v. Powell, 124 F.3d 655, 666 (5th Cir.1997) (finding that defendant’s state tax evasion satisfied the element of temporal proximity for purposes of including it as relevant conduct because it occurred during the same period of time as the federal tax evasion for which defendant was convicted), cert. denied, — U.S. -, 118 S.Ct. 1082, 140 L.Ed.2d 139 (1998); Bryant, 991 F.2d at 177 (finding temporal proximity of approximately two months helped support district court’s relevant conduct finding in drug distribution ease); United States v. Bethley, 973 F.2d 396, 400-01 (5th Cir.1992) (finding that cocaine distribution activity that occurred monthly for the six months preceding the offense of conviction could be considered relevant conduct); Moore, 927 F.2d at 826, 828 (finding that amphetamine seized five months prior to offense of conviction could be considered relevant conduct). Various courts have found that a period of separation of over one year negated or weighed against the temporal proximity of the offenses. See Hill, 79 F.3d at 1484; United States v. Maxwell, 34 F.3d 1006, 1011 (11th Cir.1994). We conclude that temporal proximity is lacking in this case. Where" }, { "docid": "22203324", "title": "", "text": "for sentencing purposes. In United States v. Kappes, 936 F.2d 227 (6th Cir.1991), this court held that where two offenses involving false statements occurred six years apart, the prior offense could not be “relevant conduct” because, although similar, it was too remote temporally. Id. at 230-31. In contrast, this court found in United States v. Miller, 910 F.2d 1321 (6th Cir.1990), cert. denied, 498 U.S. 1094, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991), that drugs distributed by a defendant once a week over a twenty-month period were properly counted as “relevant conduct” even though the defendant was only charged with a conspiracy encompassing three months of that period. Id. at 1327. Similarly, in United States v. Nichols, 979 F.2d 402 (6th Cir.1992), aff'd on other grounds, - U.S. -, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994), the court included as relevant conduct a drug purchase that preceded the offense of conviction by three months and involved the same conspirators, the same undercover agents, the same drug, and the same objective of purchasing kilogram quantities of cocaine. Id. at 413-14. Other circuits have also found that the Sentencing Guidelines impose no precise amount of time after which prior conduct is too remote to be considered “relevant conduct” under section 1B1.3. For example, in United States v. Santiago, 906 F.2d 867 (2d Cir.1990), the Second Circuit stated that “whether two or more transactions may be considered part of the same course of conduct is not determined by temporal proximity alone,” and it affirmed the district court’s “relevant conduct” finding with respect to conduct that occurred eight months before the offense of conviction at the same place and involving the same modus operandi as twelve prior sales. Id. at 872. However, the Santiago court specifically noted that eight months “is considerably longer than the periods involved in most of [its] prior cases construing the Guidelines, especially those focusing on offenses other than conspiracy.” Id. See also United States v. Moore, 927 F.2d 825, 828 (5th Cir.1991) (stating that the “guidelines impose no temporal restrictions on validly-obtained, relevant evidence” and rejecting appellant’s argument that" }, { "docid": "22210222", "title": "", "text": "ongoing series of offenses.” U.S.S.G § 1B1.3 application note 9(b). The factors that are appropriate to weigh in making the determination as to whether the offenses are sufficiently connected or related include “the degree of similarity of the offenses, the regularity of the offenses, and the time interval between the offenses.” Id. When one of the factors is absent, a stronger presence of at least one of the other factors is required. Id. In the present case, there is not a significant degree of similarity between the April 1997 offense and the post-conviction conduct involving Cervantes and Flores. The one major similarity is that the offenses all involved transporting marihuana to Florida. Other than the common drug and delivery location the April 1997 offense is significantly dissimilar from the offenses involving Cervantes and Flores. First, there is no evidence of similar accomplices, common source, or supplier. See United States v. Wall, 180 F.3d 641, 646 (5th Cir.1999) (common source, supplier and modus operandi considered by court in determining similarity of offenses). In the April 1997 offense Ocana claimed to be transporting drugs at the behest of Keenan Bennet, and informed the FBI that she had met Bennet through a lawyer named Bob Meier. In the Cervantes and Flores offenses they claim that Ocana recruited them to transport drugs and that the other person involved in the transaction was a car wash owner named Aaron Munoz. The modus operandi for the offenses is also different. In April 1997, Ocana drove a van and met Bennet at an airport. In the Cervantes and Flores offenses they drove a rented van to a hotel and Ocana flew and met them at the hotel in Florida. Based on all of these factors the April 1997 offense and the Cervantes/Flores offenses are not sufficiently similar. Therefore, one of the other factors in determining same course of conduct; temporal proximity of the offenses, or regularity of the offenses must be stronger. In the present case, there is close temporal proximity of the offenses. Cervantes and Flores claim that they made their first trip transporting drugs for" } ]

[ { "docid": "17279674", "title": "", "text": "here were established and maintained by the debtors individually through their own contributions rather than by an employer or employee organization. Therefore, they are not within section 1003(a) and the state law exemption is not preempted by ERISA. Debtors also claim an exemption for their Arizona State Pension. The statute creating that pension makes it exempt. See A.R.S. section 38-762 and A.R.S. section 33-1133 (other exemption laws not displaced). Although described in section 1003(a), that pension falls outside of ERISA and ERISA’s preemption provision because it is a governmental plan within the meaning of 29 U.S.C. section 1003(b). The court’s conclusion herein offends neither Mackey v. Lanier Collections Agency and Services, 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988), nor the Congres sional purpose of ERISA preemption, nor the public policy against abuse of the bankruptcy laws. Mackey holds only that ERISA preempts state law relating to employee benefit plans “covered by the statute.” The debtors in this case claim no exemption for any assets contemplated by ERISA. ERISA’s preemption provision was prompted by recognition that employers and employee organizations involved in interstate commerce would otherwise encounter prohibitive complexity in establishing and maintaining employee benefit plans. A patchwork scheme of regulation from state to state would introduce considerable inefficiencies into benefit program operation, leading those employers with existing plans to reduce benefits, and those without such plans to refrain from adopting them. Preemption insures that the administrative practices of a benefit plan will be governed by only a single set of regulations. Ft. Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 8, 107 S.Ct. 2211, 2221, 96 L.Ed.2d 1, 9 (1987). These concerns are absent where, as here, no employer or employee organization is involved, and where interstate commerce is not affected. Finally, Arizona’s IRA exemption scheme avoids criticism based on the observation that bankruptcy laws are intended to allow “fresh starts” rather than “head starts.” A.R.S. section 33-1126(b) allows an exemption only for an IRA qualified by the Internal Revenue Code, which generally limits IRA contributions to $2,000 annually, and to smaller amounts for individuals with" } ]

[ { "docid": "4745811", "title": "", "text": "objecting parties contend that the 341 meeting of creditors has not yet been concluded, and therefore, that the time period imposed by Bankruptcy Rule 4003 has not yet started to run. By separate order dated November 21, 1990, this Court has already ruled that the meeting of creditors was in fact concluded on April 24, 1990, and has denied the Trustee’s request to reconvene that meeting. In light of the Court’s ruling, the parties’ contention that the deadline for objecting to exemptions has not yet started to run is obviously without merit. Second, the Trustee and Blunt, Ellis & Loewi assert that debtors have “lumped” the pension plan funds and profit sharing plan funds under the term “Pension Trusts,” and that no separate exemption has been claimed for the profit sharing plan. Apparently, the objecting parties believe that they have no duty to object to debtors’ exemption in the profit sharing plan until that property has been specifically claimed as exempt. However, the amount claimed as exempt ($430,000.00) represents the total amount in both Dr. Kazi’s pension and profit sharing plans, and “it is inconceivable ... that either the capable counsel for the Trustee or that of Blunt, Ellis & Loewi was in any way mislead [sic], especially in light of the detail provided at the 2004 hearing on these issues.” See Second Supplement to Debtors’ Memorandum in Support of Debtors’ Motion to Dismiss at p. 2. Third, the objecting parties contend that debtors have claimed a “conditional” exemption by stating on their schedules that the plans and IRAs are claimed as exempt “if said property is property of the estate.” See Debtors’ Schedule B-4 and Amendment to Schedules and Statements. The parties then argue that the duty to object to exemptions does not arise until the Court has made a determination that the assets in question are property of the estate. The Court disagrees. The cases cited by counsel for Blunt, Ellis & Loewi with regard to this issue are not directly on point, and more importantly, under Bankruptcy Rule 4003, it was the duty of any interested party" }, { "docid": "4745825", "title": "", "text": "in this case demonstrates a lack of diligence in the performance of his duties that is, at best, inexcusable. C. Objection to Exemption of IRAs Blunt, Ellis & Loewi, as previously noted, did not receive notice of the amendment to debtors’ schedules filed May 18, 1990, at which time debtors added the IRAs to their claimed exemptions. The Court will therefore consider Blunt, Ellis & Loewi’s objection to exemptions only to the extent that those objections relate to the IRAs. In short, Blunt, Ellis & Loewi contends that because paragraph 12-1006(a) is preempted by ERISA, debtors have no statutory basis for claiming their IRAs as exempt. This argument is wholly without merit. Even assuming arguendo that ERISA preempts paragraph 12-1006(a), ERISA’s preemption provision does not apply to IRAs. ERISA defines “employee pension benefit plan” and “pension plan” to mean “any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization_” 29 U.S.C. § 1002(2)(A). In addition, the regulations covering ERISA provide, in part, as follows: (d) Individual Retirement Accounts. For purposes of Title I of the Act and this chapter, the terms “employee pension benefit plan” and “pension plan” shall not include an individual retirement account described in section 408(a) of the [Internal Revenue] Code, an individual retirement annuity described in section 408(b) of the Internal Revenue Code of 1954 ... and an individual retirement bond described in section 409 of the Code.... 29 C.F.R. § 2510.3-2(d)(l) (1990). Clearly, “[s]ince an IRA is self-settled and not maintained by an employer or an organization, IRAs are simply not the type of accounts that fall under the ERISA legislation.” In re Laxson, 102 B.R. 85, 89 (Bankr.N.D.Tex.1989). Therefore, ERISA does not preempt paragraph 12-1006(a) with respect to debtors' IRAs. See also In re Chadwick, 113 B.R. 540 (Bankr.W.D.Mo.1990) (trustee’s objection to debtor’s IRA exemption based on federal preemption denied); In re Martin, 102 B.R. 639 (Bankr.N.D.1989) (IRAs outside preemptive scope of ERISA). Accordingly, for the reasons stated, the objections to exemptions filed by the Trustee and Blunt, Ellis & Loewi are" }, { "docid": "4745794", "title": "", "text": "the pension and profit sharing plans or the funds in the IRAs. Debtors filed a motion to strike those objections on the basis that they were not timely filed. The Chapter 7 Trustee, who likewise failed to timely object to debtors’ exemptions, filed a complaint for turnover on August 2, 1990 requesting, among other things, that debtors be ordered to turn over all funds held in the pension and profit sharing plans, as well as all funds held in the IRAs. Debtors filed a motion to dismiss the complaint, claiming that the funds in question are not property of the estate, and further claiming that even if said funds do constitute property of the estate, debtors are entitled to exempt the funds pursuant to Ill.Rev.Stat. ch. 110, ¶ 12-1006(a). 1. Property of the Estate: Section 541 of the Bankruptcy Code A. ERISA as “Applicable Nonbankrupt-cy Law” Section 541 of the Bankruptcy Code defines property of the estate as “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). Thus, property becomes part of the bankruptcy estate regardless of any restrictions that may have been placed on its transfer. 11 U.S.C. § 541(c)(1). An important exception to this rule is found in section 541(c)(2), which provides that “[a] restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law is enforceable in a case under this title.” 11 U.S.C. § 541(c)(2). At issue in the present case is the meaning of the phrase “applicable nonbankruptcy law.” Debtors contend that the restrictions against assignment, required by the Employee Retirement Income Security Act (“ERISA”) and contained in both Dr. Kazi’s pension and profit sharing plans, are “enforceable under applicable nonbankruptcy law,” (i.e., enforceable under ERISA), and that the plans are therefore excluded from the bankruptcy estate. Blunt, Ellis & Loewi, as well as the Trustee, contend that “applicable nonbankruptcy law” refers only to state spendthrift trust law, and that Dr. Kazi’s pension and profit sharing plans may be excluded from the bankruptcy" }, { "docid": "4745809", "title": "", "text": "or not, to the assets held in or to receive pensions, annuities, benefits, distributions, refunds of contributions, or other payments under a retirement plan is exempt from judgment, attachment, execution, distress for rent, and seizure for the satisfaction of debts if the plan (i) is intended in good faith to qualify as a retirement plan under applicable provisions of the Internal Revenue Code of 1986.... III.Rev.Stat. ch. 110, II 12-1006(a). Blunt, Ellis & Loewi and the Trustee object, contending that the Illinois exemption statute is preempted by ERISA. Debtors, in response, claim that the objections to exemptions were not timely filed and should therefore not be considered. B. Timeliness of Objections Section 522(i) of the Bankruptcy Code provides: The debtor shall file a list of property that the debtor claims as exempt under subsection (b) of this section. If the debtor does not file such a list, a dependent of the debtor may file such a list, or may claim property as exempt from property of the estate on behalf of the debtor. Unless a party in interest objects, the property claimed as exempt on such list is exempt. 11 U.S.C. § 522(i) (emphasis added). Rule 4003 sets forth the deadline within which objections must be filed: The trustee or any creditor may file objections to the list of property claimed as exempt within 30 days after the conclusion of the meeting of creditors held pursuant to Rule 2003(a) or the filing of any amendment to the list unless, within such period, further time is granted by the Court. Bankr.R. 4003(b). In the present case, the meeting of creditors pursuant to 11 U.S.C. § 341(a) was noticed for and held on April 24, 1990. Neither Blunt, Ellis & Loewi nor the Trustee filed timely objections to the exemptions claimed by debtors, yet each party now contends that the objections which have been raised should be heard and determined by this Court. In support of their position, Blunt Ellis & Loewi and the Trustee offer the following arguments. First, in an attempt to “extend” the deadline for objecting to exemptions, the" }, { "docid": "4745823", "title": "", "text": "B.R. 149 (Bankr.W.D.Mo.1990) (disagreeing with majority view and holding that preemption of Missouri pension exemption statute would “modify and impair” Bankruptcy Code provision delegating to states the right to create their own bankruptcy exemptions); In re Martinez, 107 B.R. 378 (Bankr.S.D.Fla.1989) (holding that Florida exemption statute not preempted since it does not attempt to regulate pension plans or change underlying purpose of ERISA); In re Volpe, 100 B.R. 840 (Bankr.W.D.Tex.1989), aff'd, 120 B.R. 843 (W.D.Tex.1990) (holding that Texas exemption statute is not preempted by ERISA since it does not purport to regulate the terms and conditions of an employee benefit plan). These cases suggest, at a minimum, that the law surrounding the preemption issue is not as well-settled as the Trustee and Blunt, Ellis & Loewi contend. Furthermore, this Court has not yet made any decision regarding the question of whether the Illinois exemption statute for retirement plans is or is not preempted by ERISA. Given this fact, and in light of the divergent views regarding the preemp tion question, the Court concludes that debtors had a good faith statutory basis for their claimed exemptions. In reaching this decision, the Court feels compelled to comment on the failure of the Trustee to file timely, written objections to debtors’ exemptions. The Trustee has offered no explanation for his failure to do so, and indeed, a review of the record indicates that no reason exists. It is elementary that one of the primary duties of a Chapter 7 trustee is to review the bankruptcy schedules and exemption claims filed by a debtor. It is also the duty of the trustee to protect the interests of the unsecured creditors and to maximize distribution to those creditors. Debtors in the present case listed as exempt $455,000.00 in “pension trusts” and IRAs. In view of the substantial amount of money involved and of the potential benefit to the bankruptcy estate, surely the Trustee must have known of the importance, of ascertaining the validity of debtors’ exemptions and if necessary, of filing timely objections. The resulting loss to creditors is obvious. In short, the Trustee’s conduct" }, { "docid": "4745813", "title": "", "text": "to file timely objections to debtors’ scheduled exemptions regardless of whether such exemptions may or may not be characterized as “conditional.” Furthermore, the question of whether debtors may exempt retirement plans from the bankruptcy estate almost always requires a two-step analysis (do the plans constitute property of the estate and if so, may debtors claim them as exempt) that is usually made once objections to exemptions have been filed or a turnover action has been commenced. Surely the Trustee and counsel for Blunt, Ellis & Loewi are familiar with this analysis. Any argument that the obligation to object to exemptions has not arisen because of the “conditional language” in which the exemption was claimed is, in sum, unsupported by existing case law and without merit. Fourth, Blunt, Ellis & Loewi and the Trustee contend that objections which are not timely filed are not waived when debtors have actual notice of the objections prior to the expiration of the deadline set forth in Rule 4003(b). Blunt, Ellis & Loewi argues that in the present case, debtors were “repeatedly advised” that it objected to their intention to claim an exemption in the pension and profit sharing plans and IRAs, and that a substantial portion of the Rule 2004 examination held April 13, 1990 was devoted to attacking the “conditional exemption” claimed by debtors in the pension and profit sharing plans. Whether debtors had actual notice of the objections within the time period prescribed by Rule 4003(b), however, is irrelevant. Absent unusual or extraordinary circumstances not present in this case, “[objections to exemptions must be filed, and must be in writing.” 8 Collier on Bankruptcy IT 4003.04 at 4003-11 (15th ed. 1990) (emphasis added). Fifth, Blunt, Ellis & Loewi contends that the objections it filed on July 19, 1990, though untimely, should nevertheless be considered since it did not receive notice of the amendment to debtors’ list of exemptions until July 11, 1990. As previously noted, debtors amended their schedules on May 18, 1990 to add their IRAs to the list of property claimed as exempt. In conjunction with this argument, Blunt, Ellis" }, { "docid": "4745808", "title": "", "text": "assets is evidenced by the fact that he is the trustee of both plans, and is further evidenced by the fact that he transferred $300,000.00 of plan funds to his personal account. With regard to the IRAs, the Court assumes that, as with most IRA’s, debtors can withdraw the funds at any time as long as they are willing to pay the current taxes plus a penalty on the withdrawn funds. In view of the degree of control debtors may exercise over the plans and IRAs, the Court can only conclude that neither satisfy the requirements for a spendthrift trust. II. Debtors’ Exemptions under Illinois Law A. Exemption for Retirement Plans Having determined that the pension and profit sharing plans and the IRAs are property of the bankruptcy estate, the Court must next decide whether debtors are entitled to claim those assets as exempt. Debtors contend that they may exempt both the plans and IRAs pursuant to Ill.Rev.Stat. ch. 110, 1112-1006(a), which provides, in part, as follows: A debtor’s interest in or right, whether vested or not, to the assets held in or to receive pensions, annuities, benefits, distributions, refunds of contributions, or other payments under a retirement plan is exempt from judgment, attachment, execution, distress for rent, and seizure for the satisfaction of debts if the plan (i) is intended in good faith to qualify as a retirement plan under applicable provisions of the Internal Revenue Code of 1986.... III.Rev.Stat. ch. 110, II 12-1006(a). Blunt, Ellis & Loewi and the Trustee object, contending that the Illinois exemption statute is preempted by ERISA. Debtors, in response, claim that the objections to exemptions were not timely filed and should therefore not be considered. B. Timeliness of Objections Section 522(i) of the Bankruptcy Code provides: The debtor shall file a list of property that the debtor claims as exempt under subsection (b) of this section. If the debtor does not file such a list, a dependent of the debtor may file such a list, or may claim property as exempt from property of the estate on behalf of the debtor. Unless a" }, { "docid": "4745814", "title": "", "text": "were “repeatedly advised” that it objected to their intention to claim an exemption in the pension and profit sharing plans and IRAs, and that a substantial portion of the Rule 2004 examination held April 13, 1990 was devoted to attacking the “conditional exemption” claimed by debtors in the pension and profit sharing plans. Whether debtors had actual notice of the objections within the time period prescribed by Rule 4003(b), however, is irrelevant. Absent unusual or extraordinary circumstances not present in this case, “[objections to exemptions must be filed, and must be in writing.” 8 Collier on Bankruptcy IT 4003.04 at 4003-11 (15th ed. 1990) (emphasis added). Fifth, Blunt, Ellis & Loewi contends that the objections it filed on July 19, 1990, though untimely, should nevertheless be considered since it did not receive notice of the amendment to debtors’ list of exemptions until July 11, 1990. As previously noted, debtors amended their schedules on May 18, 1990 to add their IRAs to the list of property claimed as exempt. In conjunction with this argument, Blunt, Ellis & Loewi argues that the objections it filed are applicable to the pension and profit sharing plan exemptions as well, even though those exemptions were listed on debtors’ original schedules and no timely objections were filed. Rule 1009 provides that “[t]he debtor shall give notice of [any] amendment [to the schedules] to the trustee and to any entity affected thereby.” Bankr.R. 1009(a) (emphasis added). Debtors concede that Blunt, Ellis & Loewi was not given notice of the amendment, apparently because they did not consider that creditor an “affected entity.” Blunt, Ellis & Loewi, a major unsecured creditor with a claim of $180,-000.00 (debtors’ total unsecured claims equal $231,850.00), is clearly an entity affected by debtors’ claim to an exemption worth approximately $25,000.00, and was therefore entitled to notice of the amendment filed by debtors on May 18, 1990. See In re Woodson, 839 F.2d 610, 615 (9th Cir.1988) (creditor holding 90 percent of the unsecured claims against debtor was an “affected entity” entitled to notice under Rule 1009). Accordingly, the Court will consider below the" }, { "docid": "4745824", "title": "", "text": "had a good faith statutory basis for their claimed exemptions. In reaching this decision, the Court feels compelled to comment on the failure of the Trustee to file timely, written objections to debtors’ exemptions. The Trustee has offered no explanation for his failure to do so, and indeed, a review of the record indicates that no reason exists. It is elementary that one of the primary duties of a Chapter 7 trustee is to review the bankruptcy schedules and exemption claims filed by a debtor. It is also the duty of the trustee to protect the interests of the unsecured creditors and to maximize distribution to those creditors. Debtors in the present case listed as exempt $455,000.00 in “pension trusts” and IRAs. In view of the substantial amount of money involved and of the potential benefit to the bankruptcy estate, surely the Trustee must have known of the importance, of ascertaining the validity of debtors’ exemptions and if necessary, of filing timely objections. The resulting loss to creditors is obvious. In short, the Trustee’s conduct in this case demonstrates a lack of diligence in the performance of his duties that is, at best, inexcusable. C. Objection to Exemption of IRAs Blunt, Ellis & Loewi, as previously noted, did not receive notice of the amendment to debtors’ schedules filed May 18, 1990, at which time debtors added the IRAs to their claimed exemptions. The Court will therefore consider Blunt, Ellis & Loewi’s objection to exemptions only to the extent that those objections relate to the IRAs. In short, Blunt, Ellis & Loewi contends that because paragraph 12-1006(a) is preempted by ERISA, debtors have no statutory basis for claiming their IRAs as exempt. This argument is wholly without merit. Even assuming arguendo that ERISA preempts paragraph 12-1006(a), ERISA’s preemption provision does not apply to IRAs. ERISA defines “employee pension benefit plan” and “pension plan” to mean “any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization_” 29 U.S.C. § 1002(2)(A). In addition, the regulations covering ERISA provide, in part, as" }, { "docid": "4745815", "title": "", "text": "& Loewi argues that the objections it filed are applicable to the pension and profit sharing plan exemptions as well, even though those exemptions were listed on debtors’ original schedules and no timely objections were filed. Rule 1009 provides that “[t]he debtor shall give notice of [any] amendment [to the schedules] to the trustee and to any entity affected thereby.” Bankr.R. 1009(a) (emphasis added). Debtors concede that Blunt, Ellis & Loewi was not given notice of the amendment, apparently because they did not consider that creditor an “affected entity.” Blunt, Ellis & Loewi, a major unsecured creditor with a claim of $180,-000.00 (debtors’ total unsecured claims equal $231,850.00), is clearly an entity affected by debtors’ claim to an exemption worth approximately $25,000.00, and was therefore entitled to notice of the amendment filed by debtors on May 18, 1990. See In re Woodson, 839 F.2d 610, 615 (9th Cir.1988) (creditor holding 90 percent of the unsecured claims against debtor was an “affected entity” entitled to notice under Rule 1009). Accordingly, the Court will consider below the merits of the objections filed by Blunt, Ellis & Loewi on July 19, 1990, but only insofar as those objections relate to the IRAs. “[I]f the exemptions previously claimed have been finalized by the lack of a successful objection prior to the amendment, the new objections may go only to those exemptions affected by the amendment and may not reopen the propriety of all other exemptions claimed.” 8 Collier on Bankruptcy If 4003.04 at 4003-9 (15th ed. 1990). See also In re Payton, 73 B.R. 31, 33 (Bankr.W.D.Tex.1987); Matter of Gullickson, 39 B.R. 922, 923 (Bankr.W.D.Wis.1984). Finally, the Trustee and Blunt, Ellis & Loewi contend that paragraph 12-1006(a) is invalid and that debtors are therefore not entitled to their claimed exemptions, despite the lack of any timely objections. More specifically, they argue that paragraph 12-1006(a) is preempted by ERISA and thus, no state law exists on which debtors may base their exemptions. The objecting parties, in effect, ask that the Court fully examine the merits of debtors’ exemptions when no timely objections have been filed." }, { "docid": "4745793", "title": "", "text": "MEMORANDUM AND ORDER KENNETH J. MEYERS, Bankruptcy Judge. Abdul W. Kazi, M.D. and Samina W. Kazi, husband and wife, filed a joint bankruptcy petition under Chapter 7 of the Bankruptcy Code on February 28, 1990. Dr. Kazi is the sole shareholder and director of a professional corporation known as Abdul W. Kazi, M.D., Ltd., and is a participant in the Abdul Kazi, M.D., Ltd. Money Purchase Pension Plan and the Abdul Kazi, M.D., Ltd. Profit Sharing Plan. Debtors filed their original schedules on March 15, 1990 and listed as exempt $430,-000.00 in tax-qualified “pension trusts.” On May 18, 1990, debtors filed an amendment to their schedules, additionally claiming as exempt $14,000.00 in an individual retirement account (“IRA”) owned by Dr. Kazi and $11,000.00 in an IRA owned jointly by both debtors. No objections to exemptions were filed within the time limits prescribed by Bankruptcy Rule 4003(b). However, on July 19, 1990, Blunt, Ellis & Loewi, a major unsecured creditor, filed objections to exemptions, claiming that debtors are not entitled to exempt either the funds in the pension and profit sharing plans or the funds in the IRAs. Debtors filed a motion to strike those objections on the basis that they were not timely filed. The Chapter 7 Trustee, who likewise failed to timely object to debtors’ exemptions, filed a complaint for turnover on August 2, 1990 requesting, among other things, that debtors be ordered to turn over all funds held in the pension and profit sharing plans, as well as all funds held in the IRAs. Debtors filed a motion to dismiss the complaint, claiming that the funds in question are not property of the estate, and further claiming that even if said funds do constitute property of the estate, debtors are entitled to exempt the funds pursuant to Ill.Rev.Stat. ch. 110, ¶ 12-1006(a). 1. Property of the Estate: Section 541 of the Bankruptcy Code A. ERISA as “Applicable Nonbankrupt-cy Law” Section 541 of the Bankruptcy Code defines property of the estate as “all legal or equitable interests of the debtor in property as of the commencement of the case.”" }, { "docid": "4745820", "title": "", "text": "face of Rule 4003(b). Matter of Dembs, 757 F.2d 777, 780 (6th Cir.1985) (citations omitted). “[Requiring a debtor to show a good-faith statutory basis for the claimed exemption avoids the difficulties inherent in ‘exemption by declaration’ and best effectuates the policies underlying rule 4003(b).” In re Peterson, 920 F.2d 1389, 1393. Clearly, to allow a full-scale analysis of the merits of a claimed exemption where no timely objections have been filed would render Rule 4003(b) meaningless. While the Court agrees that the strict time limitations imposed by Rule 4003(b) should not be applied to provide debtors with an undeserved windfall, “[t]he dangers of ‘exemption by declaration’ ... are not significant enough to warrant permitting a trustee another bite at the debt- or’s apple where the debtor has claimed certain property exempt in good faith.” Id. Debtors base their exemptions in the pension and profit sharing plans and IRAs on Ill.Rev.Stat. ch. 110, H 12-1006(a), cited above. The Trustee and Blunt, Ellis & Loewi each contend that paragraph 12- 1006(a) is preempted by ERISA, and that debtors accordingly have no statutory basis for their claimed exemptions. A majority of courts considering this issue have indeed held that any state statute exempting ERISA-qualified retirement plans is preempted by ERISA. See, e.g., In re Alagna, 107 B.R. 301 (Bankr.D.Colo.1989); In re Flindall, 105 B.R. 32 (Bankr.D.Ariz.1989); In re Gaines, 106 B.R. 1008 (Bankr.W.D.Mo.1989); In re Komet, 104 B.R. 799 (Bankr.W.D.Tex.1989); In re Wimmer, 121 B.R. at 543. The majority view is based on the language of ERISA itself and on the Supreme Court’s decision in Mackey v. Lanier Collections Agency and Service, 486 U.S. 825, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988). ERISA provides, in relevant part, that “[ejxeept as provided in subsection (b) of this section, the provisions of this subchap-ter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan_” 29 U.S.C. § 1144(a). In Mackey, the Supreme Court addressed two questions: (1) whether a Georgia statute prohibiting garnishment of an interest in an ERISA" }, { "docid": "14635178", "title": "", "text": "complaint, arguing that the funds in question were not property of the estate, and that even if they were, debtors were entitled to claim the funds as exempt under Ill.Rev. Stat. ch. 110, 1112-1006(a). The bankruptcy court and district court could have found from the record the additional undisputed fact that before the 30-day period to object had expired, debtors had actual notice that the trustee and Blunt, Ellis & Loewi opposed the claimed exemption of the pension trust funds. (For convenience, we will refer to both the trustee and Blunt, Ellis & Loewi as the trustee; their interests on this appeal are identical.) On February 4, 1991, the United States Bankruptcy Court for the Southern District of Illinois granted summary judgment for debtors, holding that the objections to debtors’ exemption claims with respect to the pension trust funds were untimely, making it unnecessary to determine whether Ill. Rev.Stat. ch. 110, ¶ 12-1006(a) is preempted by ERISA. 125 B.R. 981. The trustee appealed the decision to the United States District Court for the Southern District of Illinois, which affirmed the decision. On March 23, 1992, the trustee filed this appeal. Jurisdiction was present in the bankruptcy court under 28 U.S.C. § 157(b)(2) and in the district court under Bankruptcy Rule 8001(a) and 28 U.S.C. § 158. Jurisdiction is present on appeal under Fed.R.App.P. 6(b) and 28 U.S.C. § 158. OPINION All the issues raised in this appeal are questions of law that are subject to de novo review. Matter of Yonikus, 974 F.2d 901, 904 (7th Cir.1992); Matter of Newman, 903 F.2d 1150, 1152 (7th Cir.1990). Upon commencement of an action in bankruptcy, all property in which the debtor has a legal or equitable interest becomes property of the bankruptcy estate, subject to certain exceptions. 11 U.S.C. § 541; Matter of Young, 806 F.2d 1303 (5th Cir.1987). Once the property becomes part of the bankruptcy estate, the debtor is allowed to claim as exempt certain property interests and the trustee or creditors are given an opportunity to object to the claimed exemptions. See 11 U.S.C. § 522(Z); Bankruptcy Rule 4003(b);" }, { "docid": "4745819", "title": "", "text": "bare possession constituting not nine, but ten, parts of the law; orderly administration of estates would be replaced by uncertainty and constant litigation if not outright anarchy. In re Bennett, 36 B.R. at 893 (emphasis in original). This Court, however, finds that a third, middle-ground approach is the appropriate method for analyzing objections that are not timely filed. This approach does not require a full examination of the claimed exemption, “but only a determination of whether there is a good-faith statutory basis for it.” In re Peterson, 920 F.2d 1389, 1393 (8th Cir.1990). As explained by the Sixth Circuit: The clear import of [Rule 4003(b) ] and of section 522(1) is that objections to claimed exemptions must be made within thirty days after the creditors’ meeting or any amendment, or they are waived. We do not mean by this to endorse “exemption by declaration”; there must be a good-faith statutory basis for exemption.... But where the validity of an exemption is uncertain under existing law ... the creditor cannot rest on his rights in the face of Rule 4003(b). Matter of Dembs, 757 F.2d 777, 780 (6th Cir.1985) (citations omitted). “[Requiring a debtor to show a good-faith statutory basis for the claimed exemption avoids the difficulties inherent in ‘exemption by declaration’ and best effectuates the policies underlying rule 4003(b).” In re Peterson, 920 F.2d 1389, 1393. Clearly, to allow a full-scale analysis of the merits of a claimed exemption where no timely objections have been filed would render Rule 4003(b) meaningless. While the Court agrees that the strict time limitations imposed by Rule 4003(b) should not be applied to provide debtors with an undeserved windfall, “[t]he dangers of ‘exemption by declaration’ ... are not significant enough to warrant permitting a trustee another bite at the debt- or’s apple where the debtor has claimed certain property exempt in good faith.” Id. Debtors base their exemptions in the pension and profit sharing plans and IRAs on Ill.Rev.Stat. ch. 110, H 12-1006(a), cited above. The Trustee and Blunt, Ellis & Loewi each contend that paragraph 12- 1006(a) is preempted by ERISA, and that" }, { "docid": "4745816", "title": "", "text": "merits of the objections filed by Blunt, Ellis & Loewi on July 19, 1990, but only insofar as those objections relate to the IRAs. “[I]f the exemptions previously claimed have been finalized by the lack of a successful objection prior to the amendment, the new objections may go only to those exemptions affected by the amendment and may not reopen the propriety of all other exemptions claimed.” 8 Collier on Bankruptcy If 4003.04 at 4003-9 (15th ed. 1990). See also In re Payton, 73 B.R. 31, 33 (Bankr.W.D.Tex.1987); Matter of Gullickson, 39 B.R. 922, 923 (Bankr.W.D.Wis.1984). Finally, the Trustee and Blunt, Ellis & Loewi contend that paragraph 12-1006(a) is invalid and that debtors are therefore not entitled to their claimed exemptions, despite the lack of any timely objections. More specifically, they argue that paragraph 12-1006(a) is preempted by ERISA and thus, no state law exists on which debtors may base their exemptions. The objecting parties, in effect, ask that the Court fully examine the merits of debtors’ exemptions when no timely objections have been filed. This the Court will not do. Debtors need only establish a good faith statutory basis for claiming their exemptions. For the reasons set forth below, the Court finds that debtors have done so in the present case. Rule 4003(b) expressly requires that objections to exemptions be filed within thirty days after the conclusion of the meeting of creditors or the filing of any amendment to the list of exemptions. Section 522(Z) of the Bankruptcy Code and Rule 4003 “clearly place the burden on the creditor [or trustee] of taking timely affirmative action.” In re Grossman, 80 B.R. 311, 313 (Bankr.E.D.Pa.1987). Moreover, under Bankruptcy Rule 9006(b)(3), courts have no discretion to enlarge 4003(b)’s time limit unless the trustee or another interested party requests an extension within the original thirty day period. Relying on the strict time limitations established by Rules 4003(b) and 9006(b)(3), a number of courts have held that failure to timely object results in the allowance of the exemption as claimed with no examination of the merits of the exemption. See, e.g., In re" }, { "docid": "4745812", "title": "", "text": "Kazi’s pension and profit sharing plans, and “it is inconceivable ... that either the capable counsel for the Trustee or that of Blunt, Ellis & Loewi was in any way mislead [sic], especially in light of the detail provided at the 2004 hearing on these issues.” See Second Supplement to Debtors’ Memorandum in Support of Debtors’ Motion to Dismiss at p. 2. Third, the objecting parties contend that debtors have claimed a “conditional” exemption by stating on their schedules that the plans and IRAs are claimed as exempt “if said property is property of the estate.” See Debtors’ Schedule B-4 and Amendment to Schedules and Statements. The parties then argue that the duty to object to exemptions does not arise until the Court has made a determination that the assets in question are property of the estate. The Court disagrees. The cases cited by counsel for Blunt, Ellis & Loewi with regard to this issue are not directly on point, and more importantly, under Bankruptcy Rule 4003, it was the duty of any interested party to file timely objections to debtors’ scheduled exemptions regardless of whether such exemptions may or may not be characterized as “conditional.” Furthermore, the question of whether debtors may exempt retirement plans from the bankruptcy estate almost always requires a two-step analysis (do the plans constitute property of the estate and if so, may debtors claim them as exempt) that is usually made once objections to exemptions have been filed or a turnover action has been commenced. Surely the Trustee and counsel for Blunt, Ellis & Loewi are familiar with this analysis. Any argument that the obligation to object to exemptions has not arisen because of the “conditional language” in which the exemption was claimed is, in sum, unsupported by existing case law and without merit. Fourth, Blunt, Ellis & Loewi and the Trustee contend that objections which are not timely filed are not waived when debtors have actual notice of the objections prior to the expiration of the deadline set forth in Rule 4003(b). Blunt, Ellis & Loewi argues that in the present case, debtors" }, { "docid": "14635177", "title": "", "text": "M.D., Ltd. Money Purchase Pension Plan and the Abdul Kazi, M.D., Ltd. Profit Sharing Plan. Debtors filed their original schedules on March 15, 1990, listing as exempt $430,000 in “pension trust funds.” On May 18, 1990, debtors filed an amendment to their original schedules claiming as exempt $14,000 in an Individual Retirement Account owned by Dr. Kazi and $11,000 in an Individual Retirement Account owned jointly by debtors. No objections to the claimed exemptions were filed within the 30-day time limit required by Bankruptcy • Rule 4003(b). On July 19, 1990, Blunt, Ellis and Loewi, a major unsecured creditor, filed objections to the exemptions, contending that debtors were not entitled to claim as exempt either the pension trust funds or the funds in the IRAs. Debtors moved to strike the objections as untimely. On August 2, 1990, the trustee filed a complaint for turnover, requesting that debtors be ordered to turn over all funds held in the pension trust funds as well as the funds in the IRAs. Debtors filed a motion to dismiss the complaint, arguing that the funds in question were not property of the estate, and that even if they were, debtors were entitled to claim the funds as exempt under Ill.Rev. Stat. ch. 110, 1112-1006(a). The bankruptcy court and district court could have found from the record the additional undisputed fact that before the 30-day period to object had expired, debtors had actual notice that the trustee and Blunt, Ellis & Loewi opposed the claimed exemption of the pension trust funds. (For convenience, we will refer to both the trustee and Blunt, Ellis & Loewi as the trustee; their interests on this appeal are identical.) On February 4, 1991, the United States Bankruptcy Court for the Southern District of Illinois granted summary judgment for debtors, holding that the objections to debtors’ exemption claims with respect to the pension trust funds were untimely, making it unnecessary to determine whether Ill. Rev.Stat. ch. 110, ¶ 12-1006(a) is preempted by ERISA. 125 B.R. 981. The trustee appealed the decision to the United States District Court for the Southern District" }, { "docid": "4745826", "title": "", "text": "follows: (d) Individual Retirement Accounts. For purposes of Title I of the Act and this chapter, the terms “employee pension benefit plan” and “pension plan” shall not include an individual retirement account described in section 408(a) of the [Internal Revenue] Code, an individual retirement annuity described in section 408(b) of the Internal Revenue Code of 1954 ... and an individual retirement bond described in section 409 of the Code.... 29 C.F.R. § 2510.3-2(d)(l) (1990). Clearly, “[s]ince an IRA is self-settled and not maintained by an employer or an organization, IRAs are simply not the type of accounts that fall under the ERISA legislation.” In re Laxson, 102 B.R. 85, 89 (Bankr.N.D.Tex.1989). Therefore, ERISA does not preempt paragraph 12-1006(a) with respect to debtors' IRAs. See also In re Chadwick, 113 B.R. 540 (Bankr.W.D.Mo.1990) (trustee’s objection to debtor’s IRA exemption based on federal preemption denied); In re Martin, 102 B.R. 639 (Bankr.N.D.1989) (IRAs outside preemptive scope of ERISA). Accordingly, for the reasons stated, the objections to exemptions filed by the Trustee and Blunt, Ellis & Loewi are OVERRULED. Debtors’ motion to dismiss, construed as a motion for summary judgment, is GRANTED. . At the hearing on this matter, all parties agreed that debtors’ motion to dismiss involved matters outside the pleading and as such, should be treated as a motion for summary judgment. See Fed.R.Civ.P. 12(b) and Bankruptcy Rule 7012(b). . ERISA requires that \"[e]ach pension plan shall provide that benefits provided under the plan may not be assigned or alienated.” 29 U.S.C. § 1056(d)(1). The Internal Revenue Code likewise provides that pension plans and trusts, in order to be tax-qualified, must contain a provision prohibiting the assignment or alienation of benefits. 26 U.S.C. § 401(a)(13). Dr. Kazi’s plans include the required restriction in section 13, which provides that \"[t]he interest of any person in this Plan or in the Trust or in any distribution to be made under the Plan shall not be assignable either by voluntary or involuntary assignment_” See the Abdul Kazi, M.D., Ltd. Money Purchase Pension Plan and Trust and Profit Sharing Plan and Trust at section 13." }, { "docid": "14635176", "title": "", "text": "CRABB, Chief District Judge. This is an appeal from a bankruptcy proceeding under Chapter 7 of the Bankruptcy Code. Abdul Kazi and Samina Kazi, debtors in this action, claimed as exempt from the bankruptcy estate pension trust funds and funds in two IRA accounts. The appointed trustee filed a complaint for turnover, contending that the funds should be included in the estate. The bankruptcy court and district court found in favor of the debtors, holding that the failure on the part of the trustee and Blunt, Ellis & Loewi to object timely to the claimed exemptions prevented the inclusion of the pension trust funds in the bankruptcy estate. We affirm. FINDINGS OF FACT The bankruptcy court judge made the following findings which were affirmed by the district court. On February 28, 1990, the Kazis, debtors, filed a joint bankruptcy petition under Chapter 7 of the Bankruptcy Code. Dr. Kazi is the sole shareholder and director of a professional corporation known as Abdul W. Kazi, M.D., Ltd., and he is a participant in the Abdul Kazi, M.D., Ltd. Money Purchase Pension Plan and the Abdul Kazi, M.D., Ltd. Profit Sharing Plan. Debtors filed their original schedules on March 15, 1990, listing as exempt $430,000 in “pension trust funds.” On May 18, 1990, debtors filed an amendment to their original schedules claiming as exempt $14,000 in an Individual Retirement Account owned by Dr. Kazi and $11,000 in an Individual Retirement Account owned jointly by debtors. No objections to the claimed exemptions were filed within the 30-day time limit required by Bankruptcy • Rule 4003(b). On July 19, 1990, Blunt, Ellis and Loewi, a major unsecured creditor, filed objections to the exemptions, contending that debtors were not entitled to claim as exempt either the pension trust funds or the funds in the IRAs. Debtors moved to strike the objections as untimely. On August 2, 1990, the trustee filed a complaint for turnover, requesting that debtors be ordered to turn over all funds held in the pension trust funds as well as the funds in the IRAs. Debtors filed a motion to dismiss the" }, { "docid": "4745832", "title": "", "text": "but is otherwise immaterial with regard to the issues now before this Court. . As previously noted, \"retirement plan” includes pension and profit sharing plans and individual retirement accounts. Ill.Rev.Stat. ch. 110, ¶ 12-1006(b)(3). . Rule 9006 provides, in part, that “[t]he court may enlarge the time for taking action under Rules ... 4003(b) ... only to the extent and under the conditions stated in those rules.” Bankr.R. 9006(b)(3). Rule 4003(b), in turn, requires that any request for extension of time to object to exemptions be made within the original thirty day period. . In discussing whether the plans and IRAs constitute property of the estate, debtors state: Finally, it is important to note that we are arguing only that under state law the retirement plans and I.R.A.S constitute spendthrift trust[s] as specifically provided in Illinois Revised Statute Chapter 110 ¶ 12-1006 and not that the state exemption statute is not preempted by ERISA. The majority of cases have held that ERISA pre-empts the application of state law exemption. Memorandum in Support of Debtors’ Motion to Dismiss at pp. 5-6. The meaning of these statements is not clear. The Court can only assume that debtors do not concede that the Illinois exemption statute is preempted by ERISA, in light of their underlying argument that the same statute entitles them to their claimed exemptions. Indeed, debtors specifically state elsewhere that they have \"clear grounds to claim as exempt the pension trust and IRAs. It is Blunt, Ellis & Loewi who are making the objection that has a questionable position....\" Motion to Strike or Deny Blunt Ellis & Loewi’s Objections to Debtors’ Schedule B-4 at p. 4. . While a different result might be reached if the IRAs were established or maintained by an employer or employee organization, In re Bharucha, 115 B.R. 671 (Bankr.D.Ariz.1990), the IRAs in the present case appear to have been established and maintained by the debtors individually." } ]

[ { "docid": "12033330", "title": "", "text": "before the patent examiners. Westinghouse Electric Corp. v. Titanium Metals Corp. of America, 454 F.2d 515 (9th Cir. 1971); Exer-Genie, Inc. v. McDonald, 453 F.2d 132 (9th Cir. 1971); Pressteel Co. v. Halo Lighting Products, Inc., 314 F.2d 695, 697 (9th Cir. 1963). Although the district court did not find that the prior art references which it relied upon were more pertinent than those considered by the Patent Office, Neff Instrument Corp. v. Cohu Electronics, Inc., 298 F.2d 82 (9th Cir. 1961), it is clear that the district court’s conclusions on the question of obviousness were based on the prior art references outlined above. This is apparent from the express finding that it was “[t]he combined application of the teachings of Golding, Michels, Thompson, Karapetoff, and Lamont which produced the final product.” However, the court in its opinion stated that it could not determine from the file exactly what the Patent Examiner based his allowance on because the file did not clearly support or oppose the trial court’s conclusion that the combined application was “not obvious.” The trial court concluded that for this reason it had treated the issue of obviousness “on a de novo basis.” Under these circumstances it is manifest that no support may be gained by appellee from the stat utory presumptions resulting from the determination of the Patent Office. Having found that the patent in question was a combination patent we look to the decisions of the Supreme Court and of this court to determine the criteria for determining patentability. Until the Act of 1952 these criteria were novelty and utility. In 1952 Congress added Section 103 which required nonobviousiness. See note 2 supra. It is with this requirement that we are concerned. Furthermore, when the patent sought is one which combines the teachings of the prior art, special strictness must be applied to be certain that the new claims satisfy all of the requisites of patentability, and particularly Section 103. Jeddeloh Brothers Tweed Mills, Inc. v. Coe Manufacturing Co., 375 F.2d 85, 89 (9th Cir.), cert. denied, 389 U.S. 823, 88 S.Ct. 57, 19 L.Ed.2d" } ]

[ { "docid": "18909527", "title": "", "text": "is sometimes referred to as a spoon board or a Hobie board, after its designer, Hobie Alter. Considering the testimony of the witnesses as well as the admissions of Stevenson, who had manufactured rocker boards prior to his invention now under consideration, it is clearly established that rocker boards, exemplified by physical exhibit RX-13, are relevant prior art. (4) The fiat skateboard. — The flat skateboard, which has a flat platform, was acknowledged in the Stevenson patent specification as prior art. Thus, on the record before us, the prior art includes, in addition to those patent references cited by the examiner in the examination of the Stevenson application, both flat skateboards and rocker skateboards. The differences between the prior art represented by flat boards and rocker boards and the claims at issue are confined solely to the configuration of the platforms. The platform of the flat skateboard is flat. The platform of the rocker board is arcuate shaped, forming a continuous curve with the leading and trailing ends each higher than the central portion of the platform. The platform of the claimed board has a section that is flat, with an inclined foot-depressible lever coupled to the rearward end section, the lever being oriented so its plane slopes upwardly and rearwardly from the platform. Obviousness In determining the presence or absence of obviousness, and in considering the facts of record before it, a court must remain aware that a patent shall be presumed valid and that the burden of persuasion is and always remains upon the party asserting invalidity, as required by 35 U.S.C. 282. See n. 4 supra. Solder Removal Co. v. International Trade Commission, 65 CCPA 120, 582 F. 2d 628, 199 USPO 129 (1978), and cases cited therein. The arguments before us and the Commission below focus on the prior art comprising the rocker board and the flat board. The rocker board has been introduced into the record as a physical exhibit rather than in the form of a written description in a patent or otherwise. The physical exhibit of the rocker provides us with an example" }, { "docid": "18909535", "title": "", "text": "ultimate legal conclusion that the claimed invention is obvious under 35 U.S.C. 103. Therefore, it is necessary that such secondary considerations also be evaluated in determining the final validity of that legal conclusion. As presented John Deere, such secondary considerations may serve to “guard against slipping into hindsight” and “to resist the temptation to read into the prior art the teachings of the invention in issue.” The ALJ found as fact, and it has been undisputed by either party, that presently kicktail skateboards constitute approximately 90 to 95 percent of production and sales in the skateboard industry. It is also clear from the record that the only difference between appellant’s kicktail skateboard and the prior art flat skateboard is the provision by appellant of “an inclined foot-depressible lever coupled to the rearward end section of the platform.” Appellant has submitted five affidavits of experienced competitive skateboarders to attest to the fact that the kicktail is superior and provides far greater maneuverability than the flat or rocker boards. The survey of the members of the Pro-Am Skateboard Pacing Association supports these affidavits by showing a decided perference for the kicktail because of its functional attributes. We also note that the majority opinion of Commissioners Moore and Bedell, as well as the ALJ, found the kicktail to possess functional advantages over the rocker. See n.3 supra. These factors establish prima facie a nexus between commercial success and the merit of appellant’s invention, the provision of an inclined foot-depressible lever. In re Felton, 484 F. 2d 495, 179 USPQ 295 (CCPA 1973); In re Caveney, 55 CCPA 721, 386 F. 2d 917, 155 USPQ 681 (1967). In rebuttal, to show that the commercial success is unrelated to the merits of the invention, appellees have presented one witness, Mr. Langton, who gave his opinion that the commercial success was due to cosmetic reasons. Appellees presented one other witness, Mr. Criswell, who was not sure why kicktails have captured so large a segment of the market. Mr. Criswell is a highly proficient skateboarder who uses the kicktail because it helps him to know where his" }, { "docid": "1471224", "title": "", "text": "handle is considered the vertical axis and a single rib the rotating line, spinning the handle (thus rotating the line around the axis) causes the rib to define a surface of revolution in the shape of the cloth of the umbrella. . Texas Steel Company, which manufactured the accused articles prior to Hensley’s acquiring its own manufacturing facilities, was named as a defendant but was dismissed by stipulation. . Recently the Ninth Circuit affirmed a judgment against Hensley for infringement of another Esco patent. Hensley Equipment Co. v. Esco Corp., 375 F.2d 432 (9th Cir., 1967), affirming 265 F. Supp. 863 (N.D.Cal., 1965). . “[I]t is fundamental that claims are to be construed in the light of the specifications and both are to be read with a view to ascertaining the invention.” United States v. Adams, 383 U.S. 39, 49, 86 S. Ct. 708, 713, 15 L.Ed.2d 572, 579 (1966). . A “ripper” is a device installed on the front or rear of a bulldozer or on the sides of a tractor. It consists of a shank extending beneath the surface of the ground which, when pulled or pushed through the ground, “rips” it up. Hensley’s rippers had replaceable wear points attached to “wear collars,” corresponding in function to adapters. . Another witness, Grove, described the inside surface of the 601-H point, viewed as though cut through in vertical sections, to be a series of ellipses, starting from an ellipse at the front end, to an ellipse at the rear end, and midway approximately a circle. . It is desirable that the district courts make specific findings on the factual matters which the Supreme Court, in Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), held determined obviousness: the state of the prior art, the level of ordinary skill in the art, and the difference between the prior art and the claims of the patent at issue. 383 U.S. at 17, 86 S.Ct. 684. That case was decided after the trial and decision in the present case, so it is understandable that the findings" }, { "docid": "22744291", "title": "", "text": "of connecting-rods, they cite several patents, among which is that of Augur, of which they state as follows: “In this patent side-springs are used, the front ends of which are hinged upon fixed and rigid standards secured upon the top of the front bolster, and where the front ends of the spring are firmly held in a central position over said bolster, while the rear ends are hinged to hinges secured to the outer ends of a single connecting-rod placed over the top of the rear axle in such a manner that, as the springs are lengthened by depression, a corresponding rotation is imparted to the connecting-rod. In this case provision for the lengthening of the springs when depressed or in motion' is only made for the rear ends of the springs, the front ends being firmly held over the centre of the bolster; and hence, as the load upon the springs is increased, and as only their rear ends, in combination with said links and connecting-rod, are permitted to accommodate their vibration, the rear end of the body is caused to have a backward tipping motion •—■ that is, the back end of the body is thrown lower than the front end, when the springs are depressed to their full capacity — which is an objectionable feature in this device for equalizing the action of springs; besides, as only the rear ends of the springs are allowed to act,-that easy and natural motion of the springs which is only had by allowing both ends to act freely is in a great measure lost. “ The radical difference of our invention from each and all the cases above cited is, first, in the construction of the connecting-rod,” (which is in reality precisely the .same as that employed by Augur;) “ and, secondly, in suspending both ends of the springs upon separate connecting-rods, and thus allow both, ends of the springs to act freely and in harmony with their vibrating motion, to which is added the other important advantage, viz.: that arrangement of connecting-rods admits of their application to side-spring vehicles" }, { "docid": "6714736", "title": "", "text": "to become loose. The snap fastener provided conduction. Increased adhesion facilitated long-term cardiac monitoring. The ’807 design was not “pre-gelled.” Electrolyte gel had to be added to the electrode cup at the time it was applied to the patient. NDM’s next development was a “pregelled,” “ready-to-use” electrode, U.S. Patent No. 3,701,346 (“The ’346 patent”), filed on January 4, 1971. In addition to the elements of the ’807 patent, the ’346 patent had an absorbent pad prefilled with electrolyte gel. The attached pad, which remained out of the electrode cup during storage, compressed into the cup when the electrode was applied to a patient. This created a stable gel column between the patient’s skin and the electrode’s snap conductor, insuring accurate monitoring. The ’346 patent also included a cover to protect the gel pad during storage. The ’346 patent enjoyed immediate and substantial commercial success. In the last quarter of 1970, NDM sold a quarter million of the ready-to-use electrodes. In 1973, NDM sold 18 million electrodes; by 1976, when this action was tried, NDM had annual sales of thirty million electrodes. In 1973, NDM brought this action against Hayes Products for patent infringement. Hayes Products counterclaimed, seeking a declaration that NDM’s patents were invalid for obviousness. The district court evaluated Hayes products’ assertion of obviousness under the criteria described in Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). It used ten references to define the scope and content of the relevant prior art. Five of the references, had not been before the patent examiners when the ’807 and ’346 patents were granted. After reviewing all the references before it, the district court invalidated the patents on the grounds of obviousness. NDM appealed. The Presumption of Validity. Patents issued by the U.S. Patent Office are presumed valid. 35 U.S.C. § 282. This presumption dissipates, however, by a showing that pertinent prior art was not cited to the patent examiners. Hewlett-Packard Company v. Tel-Design, Inc., 460 F.2d 625, 628-629 (9th Cir. 1972); Ceco Corp. v. Bliss & Laughlin Industries, Inc., 557 F.2d 687, 691 (9th" }, { "docid": "18909519", "title": "", "text": "Baldwin, Judge. This is an appeal from the November 13, 1978 order of the U.S. International Trade Commission (Commission) which terminated investigation No. 337-TA-37, “In the Matter of Certain Skateboards and Platforms Therefor,” in view of its determination that no violation of section 337 of the Tariff Act of 1930, as amended by the Trade Act of 1974, 19 U.S.C. 1337, exists in the importation into, or sale in, the United States of certain skateboards and platforms therefor. We reverse and remand. Background On November 4, 1977, appellant, Richard L. Stevenson (Stevenson) filed an amended complaint with the Commission pursuant to section 337, alleging that unfair methods of competition exist in the importation and distribution of certain skateboards alleged to infringe claims 1, 2, 7, and 8 of U.S. patent No. 3,565,451 to Stevenson. The filing date of the Stevenson patent is June 12, 1969. Claim 1 is the broadest claim, and reads: 1. A sport maneuvering device comprising: a. an elongated platform for supporting a person, the platform having a forward end section and a rearward end section; b. wheels coupled to and beneath the platform; and c. an inclined foot-depressible lever coupled to the rearward end section of the platform, the lever being oriented so its plane slopes upwardly and rearwardly from the platform wherein a person positioned with one foot on the platform and the other foot resting on the lever may tilt the platform to a desired position by depressing the lever. The subject device of the claims at issue is commonly known as a kicktail skateboard. Foreign manufacturers and exporters named and served in the investigation were New Zeal Enterprises Co., Ltd., Lido Trading Co., Ltd., Prophet International Co., Ltd., Hardy Enterprise Corp., and Amapala Marine (name corrected to S. K. B. de Hondiuras [sic] by order issued March 31, 1978). Importers named and served were Sportmaster, Inc., Marco Polo Co., National Sporting Goods Corp., Dixie Trading Co., and Woodline Products Co. The only named respondents to appear at the hearing (referred to collectively as the “Taiwan manufacturers”) were New Zeal Enterprises, Co., Ltd., Prophet" }, { "docid": "18909538", "title": "", "text": "fact, there is substantial evidence to the contrary that problems of imbalance result from the curved deck of the rocker. There is nothing in the testimony of ap-pellee’s witnesses to suggest that one having ordinary skill in the art would have found it obvious to modify either the flat or the rocker boards in such a manner as to result in the claimed kicktail skateboard. The evidence tends to support a finding that definite advantages in maneuverability adhere to the claimed skateboard configuration. To read into the upswept tail of the rocker hoard the teachings of appellant’s kicktail is precisely the hindsight reasoning cautioned against in Graham v. John Deere, supra. Simplicity and hindsight are not proper criteria for resolving the issue of obviousness. In re Van Wanderham, 54 CCPA 1487, 378 F. 2d 981, 154 USPQ 20 (1967). Infringement Claim 1 requires “an inclined foot-depressible lever coupled to the rearward end section of the platform.” There are narrower claims in the patent than those we have considered in this action which restrict the construction of the lever to the tubular construction shown in the drawings and appellant’s preferred embodiment. It is not necessary to describe in the specification all possible forms in which the claimed limitation may be reduced to practice. Thus, we do not construe a broad claim to contain limitations expressed in the more narrow claims. Smith v. Snow, 294 U.S. 1, 24 USPQ 26 (1935). In the instant case it is the provision by appellant of an inclined foot-depressible lever rather than the specific manner in which it is coupled to the skateboard platform which more accurately reflects appellant’s invention. Therefore, we agree with the Commission that the term “coupled” is sufficiently broad to read on the one-piece molded skateboard platform of SX-5. See n. 3, stipulation 6 supra. We therefore need not consider application of the doctrine of equivalents. Unenforceability The Taiwan manufacturers assert that the Stevenson patent is unenforceable because during its prosecution before the Patent and Trademark Office (PTO), the patentee failed to disclose relevant prior art, i.e., the rocker board, to the" }, { "docid": "18909546", "title": "", "text": "skateboards in question has the effect or tendency to destroy or substantially injure the U.S. industry; and (6) If infringement is found as to one of the accused imported skateboards (staff exhibit No. 5 (SX-5)), then all the accused imported skateboards infringe the Stevenson patent. Commissioners Moore and Bedell, in their joint opinion, reasoned that: “The functional advantages of the kicktail skateboard relative to the rocker skateboard arise from the fact that the front portion of the former is flat whereas that of the latter is curved. The continuously curved shape of the rocker board causes a dip in the center portion of the board that deepens as the curvature of the board increases. This dip can cause balance problems for the rider attempting to perform ‘wheelies/ as well as increasing the likelihood that the center portion of the board will scrape against the ground. The presiding officer [ALJ] found that it would have been obvious to a person of ordinary skill at the time the kicktail invention was made to eliminate the rocker board’s balance and grounding problems by simply flattening its center and forward portions. We agree.” 35 U.S.C. 282, i n effect at the time appellant filed his complaint, provides in part: “A patent shall he presumed valid. Each claim of a patent (whether in independent or dependent form) shall he presumed valid independently of the validity of other claims; dependent claims shall he presumed valid even though dependent upon an invalid claim. The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting it.” While claim 1 does not specifically limit the elongated platform to a flat shape, a review of the entire specification including the figures, and particularly claim 2 which refers to “an intersection angle defined by the planes of the platform and lever,” we conclude that the elongated platform recited in claim 1 is planar. Note that we do not read the limitation of claim 2 into claim 1, but instead use the recitation in claim 2 which is a part of the entire specification as" }, { "docid": "18909520", "title": "", "text": "a rearward end section; b. wheels coupled to and beneath the platform; and c. an inclined foot-depressible lever coupled to the rearward end section of the platform, the lever being oriented so its plane slopes upwardly and rearwardly from the platform wherein a person positioned with one foot on the platform and the other foot resting on the lever may tilt the platform to a desired position by depressing the lever. The subject device of the claims at issue is commonly known as a kicktail skateboard. Foreign manufacturers and exporters named and served in the investigation were New Zeal Enterprises Co., Ltd., Lido Trading Co., Ltd., Prophet International Co., Ltd., Hardy Enterprise Corp., and Amapala Marine (name corrected to S. K. B. de Hondiuras [sic] by order issued March 31, 1978). Importers named and served were Sportmaster, Inc., Marco Polo Co., National Sporting Goods Corp., Dixie Trading Co., and Woodline Products Co. The only named respondents to appear at the hearing (referred to collectively as the “Taiwan manufacturers”) were New Zeal Enterprises, Co., Ltd., Prophet International Ltd., Lido Trading Co., Ltd., and Hardy Enterprise Corp. It was stipulated by the active parties that all named respondents were engaged in either export to or importation into the United States of the articles in question. An evidentiary hearing was conducted by a Commission Administrative Law Judge (ALJ). His recommendation ivas that the Commission determine that there is no violation of section 337 in the importation and sale in the United States of skateboards and platforms therefore meeting claims 1, 2, 7, and 8 of the Stevenson patent. This recommendation resulted from his conclusion that the subject claims are invalid as obvious under 35 U.S.C. 103 in view of prior art. The Commission, with Chairman Parker dissenting and Commissioner Stem not participating, ordered the investigation terminated on the basis of a determination that no violation of section 337 exists. As reflected in the joint opinion of Commissioners Moore and Bedell and the concurring opinion of Commissioner Alberger, the basis of this determination was the finding that claims 1, 2, 7, and 8 of" }, { "docid": "18909526", "title": "", "text": "against Sears & Roebuck Co. by appellant on the same patent now under consideration. Neither witness could recall the position of the rear wheels relative to the aft end. The evidence presented is insufficient to establish the existence of any anticipating devices. Proof of such devices, alleged to he complete anticipations of the subject patent, must be clear and convincing to overcome the presumption of validity. Uncorroborated oral testimony of prior inventors or users with a demonstrated financial interest in the outcome of the litigation is insufficient to provide such proof. The Barbed Wire Patent, 143 U.S. 275, 284 (1892); Jones Knitting Corp. v. Morgan, 361 F. 2d 451, 149 USPQ 659 (3d Cir. 1966). (3) The rocker skateboard. — A physical exhibit, RX-13, of a rocker skateboard has been admitted into the record. A rocker board differs from a flat skateboaid in that the platform of the rocker board has an arcuate, continuously curved configuration with the leading and trail-, ing edges each higher than the center portion of the platform. A rocker board is sometimes referred to as a spoon board or a Hobie board, after its designer, Hobie Alter. Considering the testimony of the witnesses as well as the admissions of Stevenson, who had manufactured rocker boards prior to his invention now under consideration, it is clearly established that rocker boards, exemplified by physical exhibit RX-13, are relevant prior art. (4) The fiat skateboard. — The flat skateboard, which has a flat platform, was acknowledged in the Stevenson patent specification as prior art. Thus, on the record before us, the prior art includes, in addition to those patent references cited by the examiner in the examination of the Stevenson application, both flat skateboards and rocker skateboards. The differences between the prior art represented by flat boards and rocker boards and the claims at issue are confined solely to the configuration of the platforms. The platform of the flat skateboard is flat. The platform of the rocker board is arcuate shaped, forming a continuous curve with the leading and trailing ends each higher than the central portion of" }, { "docid": "22798370", "title": "", "text": "that condition for some months. The evidence is sufficient to warrant a finding that there was a breach of duty in this respect. But the precise question for decision is whether the condition of the pipe caused or contributed to cause the death of deceased. The east end of the part so loosened and bent was about 15 feet west of the place where the body of deceased was found. Respondent argues that a brakeman, going in from the south side to couple the hose between the caboose and rear car, naturally would step inside the south rail with his right foot, leaving his left foot between the rail and the air pipe line. As to that the evidence is in conflict, but it will be taken to be sufficient to sustain the contention. The shoes worn by deceased at the time of the accident were received in evidence. The outside of the counter of the left shoe was scratched and showed a marked rounding depression parallel with the sole and just above the heel. This condition was first noticed some days after the accident. In the meantime the shoes had been left in a garage and no attention was given to them. The depression in the counter was not so clear at the trial as when first noticed. The foregoing indicates the substance of all the evidence bearing on the cause of death. The case was tried, and respondent supports the judgment, on the theory that when the switch engine stopped after the last coupling deceased went between the caboose and car to couple the air hose; that he stepped between the rails with his right foot Ifeaving his left foot outside the south rail and between it and the pipe line; that, stooping to reach the air hose, his left foot slipped back ward under the bent pipe; that, before he had time to make the coupling, the cars were started backward in the movement to clear the switch; that, when he attempted to straighten up, his left foot was caught under the pipe and he was forced" }, { "docid": "12958365", "title": "", "text": "foot on the loading dock and one on the edge of his trailer, removed the rear end rails of the trailer. After placing these end rails on the dock, Sims attempted to “step on the back of the truck and roll up my tarp. When I got ready to step off the dock, my feet slipped, and I fell_” Specifically, Sims notes that at the time of his fall he had placed his left foot upon the trailer and was in the process of removing his right foot from the loading dock when his left foot slipped causing him to fall. Sims indicated through deposition testimony that he found the loading dock area abandoned with only one light turned on which “gave off a little glow.” Sims also indicated that the loading dock was covered with a salt water solution, used in the transportation of the animal hides, when he arrived at the loading dock. During his tenure with Lawson, Sims had been informed by three of his co-workers about the slippery nature of the loading dock. Sims filed this diversity action against Memphis Processors, Inc. on November 12, 1987, claiming that Memphis was negligent in failing to make the loading dock safe or warn him of the slippery, hazardous condition. The district court granted Memphis’ motion for summary judgment, finding that, as a matter of Tennessee law, Sims’ conduct constituted both contributory negligence and assumption of risk. See Sims, 736 F.Supp. at 787. We review de novo the district court’s published grant of summary judgment in favor of Memphis Processors and “apply the same test as that used by the district court in reviewing a motion for summary judgment.” Berlin v. Michigan Bell Tel. Co., 858 F.2d 1154, 1161 (6th Cir.1988) (citing Hand v. Central Transport, Inc., 779 F.2d 8, 10 (6th Cir.1985)). Summary judgment is appropriate when the record reveals that there are no issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91" }, { "docid": "18909537", "title": "", "text": "foot is. We earlier noted that Mr. Criswell, like Mr. Langton, has a personal financial interest in kicktail skateboards. Thus, appellees have chosen to rebut appellant’s prima facie nexus between commercial success and the merit of his invention with the opinion testimony of a single witness with a demonstrated financial interest in the outcome. As noted earlier, we must subject such testimony to close scrutiny. The Barbed Wire Patent, supra; Jones Knitting Corp. v. Morgan, supra. We consider the testimony proffered by appellee to be insufficient to overcome the evidentiary value of that of appellants. The net result is a positive inference that the claimed skateboard would have been unobvious at the time the invention was made to one of ordinary skill in the art. After reviewing the evidence which has been summarized above, we find there is no evidence of record that would have suggested to one having ordinary skill in the art at the time of appellant's invention that the upswept tail of the rocker board would function to provide improved maneuverability. In fact, there is substantial evidence to the contrary that problems of imbalance result from the curved deck of the rocker. There is nothing in the testimony of ap-pellee’s witnesses to suggest that one having ordinary skill in the art would have found it obvious to modify either the flat or the rocker boards in such a manner as to result in the claimed kicktail skateboard. The evidence tends to support a finding that definite advantages in maneuverability adhere to the claimed skateboard configuration. To read into the upswept tail of the rocker hoard the teachings of appellant’s kicktail is precisely the hindsight reasoning cautioned against in Graham v. John Deere, supra. Simplicity and hindsight are not proper criteria for resolving the issue of obviousness. In re Van Wanderham, 54 CCPA 1487, 378 F. 2d 981, 154 USPQ 20 (1967). Infringement Claim 1 requires “an inclined foot-depressible lever coupled to the rearward end section of the platform.” There are narrower claims in the patent than those we have considered in this action which restrict the construction" }, { "docid": "6714737", "title": "", "text": "annual sales of thirty million electrodes. In 1973, NDM brought this action against Hayes Products for patent infringement. Hayes Products counterclaimed, seeking a declaration that NDM’s patents were invalid for obviousness. The district court evaluated Hayes products’ assertion of obviousness under the criteria described in Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966). It used ten references to define the scope and content of the relevant prior art. Five of the references, had not been before the patent examiners when the ’807 and ’346 patents were granted. After reviewing all the references before it, the district court invalidated the patents on the grounds of obviousness. NDM appealed. The Presumption of Validity. Patents issued by the U.S. Patent Office are presumed valid. 35 U.S.C. § 282. This presumption dissipates, however, by a showing that pertinent prior art was not cited to the patent examiners. Hewlett-Packard Company v. Tel-Design, Inc., 460 F.2d 625, 628-629 (9th Cir. 1972); Ceco Corp. v. Bliss & Laughlin Industries, Inc., 557 F.2d 687, 691 (9th Cir. 1977). Prior art is pertinent if it discloses something not disclosed by the other prior art; in other words, it may not be cumulative. Speed Shore Corp. v. Denda, 605 F.2d 469, 471 (9th Cir. 1979). NDM argues that the trial court improperly denied its patents the benefit of the presumption. NDM concedes that five pieces of prior art were not considered by the patent examiners. It argues, however, that the “prior pertinent art not considered” exception should not invalidate the statutory presumption because four pieces of the prior art were not pertinent and the other was inadmissible. NDM’s argument is not convincing. As a preliminary matter, we note that the district court’s failure to make an express finding that the statutory presumption had been overcome was not prejudicial error. Hewlett-Packard Company v. Tel-Design, Inc., supra, 460 F.2d at 628. The district court correctly believed that the two British articles describing a “Devices Electrode” were prior pertinent art not considered by the patent examiners. The Devices Electrode, described by the British Publications, had a" }, { "docid": "5841714", "title": "", "text": "prior to November, 1922, but held that this was an abandoned experiment, and that the party Smith “ slept on his rights until possibly spurred into activity by the sale to Smith’s customers by Nevin of a syringe within the issue of the interference.” Priority was therefore awarded to Nevin, the senior party. The Board of Appeals came to the same conclusion and affirmed the decision of the Examiner of Interferences. Practically the only question upon this record is whether the appellant reduced his invention to practice in the latter part of 1921 and early part of 1922. In order to properly determine this matter, some view of the evidence must be had. The parties in this interference are men of ability and high standing in their professions. The party Smith resides at Los Angeles, is a specialist in plastic oral surgery, and teaches, writes and lectures extensively upon local anaesthesia and other subjects pertaining to his profession. He is a graduate of many educational institutions, and has lectured extensively throughout the United States and in Canada and Europe. For many years he attempted to develop instruments for use in his profession, and particularly hypodermic syringes and ampoules. The latter part of 1921 he developed and constructed a form of hypodermic syringe, which is thus described by him. Tlie ampule was composed oí glass, constricted at one end, I would call it the front end, into a taper; the other end, or rear end;, was cut off; in other-words not restricted. Tlie tapered end contained a rubber band which was used as a gasket or washer. This rubber band or washer was approximately one-eighth of an inch in width and one or one and a half millimeters ip thickness. It was located about one-half centimeter from the constricted glass tip. The rear end of the ampule was closed by a rubber cork. The outer portion of this cork was located about two or three millimeters from the rear end. The cork contained a depression which was cylindrical. This depression extended almost through the cork. The ampule contained a liquid. The" }, { "docid": "6714746", "title": "", "text": "patent obvious. There is no functional difference between the Baum ’745 and the ’3466 once the protective cover of each is removed. It may well be as NDM argues that the ’346 was an improvement over the ’745, achieving a more stable gel column when applied to the skin. But “[i]n applying Section 103 . . . the test is not whether the object is an improvement in the art; ...” but whether an improvement is obvious to one skilled in the art. Reinke Mfg. Co., Inc. v. Sidney Mfg. Corp., 594 F.2d 644, 646 (8th Cir. 1979). “ ‘[A]n improvement which is obvious ... is not entitled to protection.’ ” Id. The record supports the trial court’s conclusion that the ’346 patent was obvious to one skilled in the art. Secondary Considerations of Nonobviousness. NDM points to the considerable commercial success of its electrode, arguing that the devices resolved a long-standing problem in cardiac monitoring. These factors are relevant to determining patentability, Graham v. John Deere Co., 383 U.S. at 12, 86 S.Ct. at 691, but they are of secondary importance. Id. at 18, 86 S.Ct. at 694. Their consideration is permissible, not required, and their presence or absence is not alone determinative of obviousness. Id., see also, Penn Intern. Industries v. Pennington Corp., 583 F.2d 1078, 1081 (9th Cir. 1978). Indeed, where patents are obvious, they cannot be saved from invalidity by a resort to such secondary considerations. Jeddeloh Brothers Sweed Mills, Inc. v. Coe Manufacturing Co., 375 F.2d 85, 91 (9th Cir.), cert. denied, 389 U.S. 823, 88 S.Ct. 57, 19 L.Ed.2d 76 (1967). The district court in this case had substantial evidence to find the ’807 and ’346 patents obvious. It was not bound by the secondary considerations alluded to by NDM. Synergism: ’807 and ’346 Patents. The synergistic test of patentability of combination devices derives from A. & P. Tea Co. v. Supermarket Corp., 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162 (1950), reh. denied, 340 U.S. 918, 71 S.Ct. 349, 95 L.Ed. 663 (1951). Patents may be issued for inventions which combine elements" }, { "docid": "18909534", "title": "", "text": "the scales in favor of patentability in close cases. The cases cited by the Taiwan manufacturers, Digitronics Corp. v. New York Facing Association, Inc., 553 F. 2d 740, 193 USPQ 577 (2d Cir. 1977), International Telephone and Telegraph Corp. v. Raychem Corp., 538 F. 2d 453, 191 USPQ 1 (1st Cir. 1976), and cases cited therein, support their view that “[o]nly in a close case, in which application of the subjective criteria of nonobviousness in 35 U.S.C. 103 does not produce a firm conclusion, can these objective or secondary considerations be used to ‘tip the scales in favor of patentability.’ ” Digitronics, supra at 748, 193 USPQ at 584. Contrary to the statement in Digitronics, we find nothing in Sakraida v. Ag Pro, Inc., 425 U.S. 273, 189 USPQ 449 (1976) that “laid to rest” the view followed by this court and enunciated in Graham v. John Deere Co., supra at 17, 36, 148 USPQ at 467, 474. The inference of obviousness drawn from prior art disclosures is only prima facie justification for drawing the ultimate legal conclusion that the claimed invention is obvious under 35 U.S.C. 103. Therefore, it is necessary that such secondary considerations also be evaluated in determining the final validity of that legal conclusion. As presented John Deere, such secondary considerations may serve to “guard against slipping into hindsight” and “to resist the temptation to read into the prior art the teachings of the invention in issue.” The ALJ found as fact, and it has been undisputed by either party, that presently kicktail skateboards constitute approximately 90 to 95 percent of production and sales in the skateboard industry. It is also clear from the record that the only difference between appellant’s kicktail skateboard and the prior art flat skateboard is the provision by appellant of “an inclined foot-depressible lever coupled to the rearward end section of the platform.” Appellant has submitted five affidavits of experienced competitive skateboarders to attest to the fact that the kicktail is superior and provides far greater maneuverability than the flat or rocker boards. The survey of the members of the Pro-Am" }, { "docid": "17405535", "title": "", "text": "a low-bed trailer, each drawn by separate tractors, owned by Bigley Brothers, Inc. The labor force of the two companies was, to some extent, used interchangeably. Those performing this particular contract were paid by Bigley Brothers, Inc. 7. On February 2 a 90-foot pole section was damaged at rail side. This section had been unloaded from the railroad car onto plaintiff’s tractor trailer which, in maneuvering through close quarters alongside the railroad car, swung around in such a way as to bring the end of the pole designed for splicing into contact with the side of a railroad car, crushing the end of the pole and rendering it unfit for use. 8. On February 5 two more of the 90-foot pole sections were damaged at the Army Remote Receiving Station. Defendant’s agent at the Station directed that the poles be unloaded at a site in an open field on the reservation about 100 yards off the main road. Plaintiff’s Washington manager had previously inspected that site. Plaintiff’s employees raised no objection to the site selected. Rain had made the surface of the field soft and muddy. Several loads of pole sections were hauled in and unloaded there without incident. Then, while a pole trailer loaded with six 90-foot pole sections was pulling into position near the unloading site, the left rear wheel of the trailer suddenly sank into a mudhole up to its axle at a point 25 or 30 yards off the main road. Plaintiff’s employees, with the knowledge of defendant’s agents on the scene and without their objection, hooked a crane truck to the front of the mired tractor trailer in an effort to pull it out. As the towing tension increased, the safety cable, connecting the tractor with the rear wheels of the trailer, broke, and the lashed ends of the poles which had been resting on the rear end of the tractor fell to the earth a distance of four or five feet. The breaking of the safety cable had caused the tractor to separate from the trailer and to slip from under its burden. In" }, { "docid": "18909528", "title": "", "text": "the platform. The platform of the claimed board has a section that is flat, with an inclined foot-depressible lever coupled to the rearward end section, the lever being oriented so its plane slopes upwardly and rearwardly from the platform. Obviousness In determining the presence or absence of obviousness, and in considering the facts of record before it, a court must remain aware that a patent shall be presumed valid and that the burden of persuasion is and always remains upon the party asserting invalidity, as required by 35 U.S.C. 282. See n. 4 supra. Solder Removal Co. v. International Trade Commission, 65 CCPA 120, 582 F. 2d 628, 199 USPO 129 (1978), and cases cited therein. The arguments before us and the Commission below focus on the prior art comprising the rocker board and the flat board. The rocker board has been introduced into the record as a physical exhibit rather than in the form of a written description in a patent or otherwise. The physical exhibit of the rocker provides us with an example of an upswept trailing end, or tail, which is inclined at an angle to a horizontal surface. We must consider the evidence of record to determine what, if any, teachings were provided to one of ordinary skill in the art at the time of Stevenson’s invention that would have made it obvious to substitute the flat platform of the flat skateboard for the arcuate platform of the rocker, or conversely to combine the upswept, inclined tail of the rocker with the flat skateboard. (1) Testimony of witnesses. — The physical exhibit, PX-13, of a rocker skateboard was introduced by Mr. Gottlieb, a manufacturer of skateboards, who testified that the rocker board existed prior to Stevenson’s invention of the kicktail skateboard. Mr. Gottlieb provided no testimony with regard to the actual teachings inherent in the rocker board at the time of appellant’s invention. Appellee’s witness Mr. Langton, the president of the National Skateboard Association, Inc., testified to his early experience with primitive wood plank skateboards in the 1950’s. He indicated that he did not perform many" }, { "docid": "18909545", "title": "", "text": "direct that the articles concerned, imported by any person violating the provision of this section, be excluded from entry into the United States, unless, after considering the effect of such exclusion upon the public health and welfare, competitive conditions in the U.S. economy, the production of like or directly competitive articles in the United States, and U.S. consumers, it finds that such articles should not be excluded from entry. The Commission shall notify the Secretary of the Treasury of its action under this subsection directing such exclusion from entry, and upon receipt of such notiee, the Secretary shall, through the proper officers, refuse such entry. The Commission’s brief reports that the following stipulations were entered into by the active parties below: (1) There is importation of the skateboards in question into the United States; (2) There is an industry devoted to production of the skateboards in question in the United States; (3) The U.S. industry is composed of appellant and his licensees; (4) The U.S. industry is efficiently and economically operated: (5) Importation of the skateboards in question has the effect or tendency to destroy or substantially injure the U.S. industry; and (6) If infringement is found as to one of the accused imported skateboards (staff exhibit No. 5 (SX-5)), then all the accused imported skateboards infringe the Stevenson patent. Commissioners Moore and Bedell, in their joint opinion, reasoned that: “The functional advantages of the kicktail skateboard relative to the rocker skateboard arise from the fact that the front portion of the former is flat whereas that of the latter is curved. The continuously curved shape of the rocker board causes a dip in the center portion of the board that deepens as the curvature of the board increases. This dip can cause balance problems for the rider attempting to perform ‘wheelies/ as well as increasing the likelihood that the center portion of the board will scrape against the ground. The presiding officer [ALJ] found that it would have been obvious to a person of ordinary skill at the time the kicktail invention was made to eliminate the rocker board’s" } ]

[ { "docid": "816898", "title": "", "text": "determining whether “chocolate fudge” had acquired a secondary meaning. 36. No survey however, has been presented to demonstrate whether “chocolate fudge” has established in defendant’s market a secondary meaning as to the origin of plaintiff’s product. 37. Alan Canfield stated that he did not know whether such a survey conducted in defendant’s market would show that consumers associate “chocolate fudge” with plaintiff. 38. On July 8, 1985, after a hearing on a preliminary injunction, Judge Shadur of the U.S. District Court for the Northern District of Illinois concluded that there was a reasonable basis for holding that “chocolate fudge” as used by plaintiff is suggestive, but that if not, there was as to the Chicago area, “a substantial likelihood Can-field’s will be able to show chocolate fudge, as the result of thirteen years of use and advertising and with the enormous springboard presented by the Greene article and the ensuing nationwide publicity and skyrocketing demand, has obtained the requisite secondary meaning to entitle Canfield to trademark protection.” A.J. Canfield Co. v. Vess Beverages, Inc., 226 U.S.P.Q. (BNA) 811, 818, 612 F.Supp. 1081 (N.D.Ill.1985). 39. On July 10, 1985, plaintiff sent to defendant a cease and desist letter and a copy of Judge Shadur’s opinion. 40. Plaintiff’s diet chocolate fudge soda evolved at the request of Alan Canfield, who approximately 15 years ago, presented plaintiff’s chemist with some chocolate fudge candy and asked him to duplicate the flavor for use in a carbonated drink. 41. The Carnation Company uses “chocolate fudge” nationally as a flavor designator for its “Slender” diet chocolate fudge drink. Carnation has sold “Slender” since 1970. 42. Plaintiff has used photographs of chocolate fudge in its advertising and on labels applied to its diet chocolate fudge soda can. 43. Alan Canfield confirmed the use of pictures of chocolate fudge, as well as the use of pictures of chocolate cake and chocolate candy in plaintiffs diet chocolate fudge soda advertisements. 44. Other advertisements of plaintiffs product liken it to a cold hot fudge sundae. 45. Still other advertisements by plaintiff use “diet chocolate fudge” in a manner that characterizes" } ]

[ { "docid": "23528661", "title": "", "text": "mere chocolate soda, an established product class, suggesting that much of the demand for this soda arises because of its flavor. The term “chocolate fudge” is a common descriptive explanation of that functional difference. Accordingly, the relevant product class is not diet chocolate sodas but diet sodas that taste like chocolate fudge. Having determined the relevant product genus, we must examine the need of Can-field’s competitors to use the term “chocolate fudge.” Often, this examination will require a factual analysis of alternative terms. Flavors, however, have unique characteristics, and we can imagine no term other than “chocolate fudge” that communicates the same functional information, namely, that this soda has the taste of chocolate fudge, a particular, full, rich chocolate taste. (The preliminary injunctive record reveals no alternative terms either.) Notwithstanding Canfield’s role in creating the demand for this kind of product, the trademark laws do not give it the right to be the sole producer of a diet soda tasting like chocolate fudge. Such a right could only come from the patent laws. Accordingly, we conclude on this record that the term “chocolate fudge” as applied to diet soda is generic and is available to all potential competitors. Any complication in this case arises only from Canfield’s claims that chocolate fudge is “incongruous” when combined with diet soda, (Appellant’s Br. at 39). Such a suggestion implies that no diet soda can taste like chocolate fudge so that chocolate fudge soda cannot be the name of the product genus. To the extent that Canfield claims that its soda does not taste like chocolate fudge because chocolate fudge does not denote a taste, we must uphold the district court’s finding to the contrary, for it is not clearly erroneous. Of course, the district court made those findings only in a preliminary injunction hearing, and Canfield is free to adduce additional evidence in its case on final hearing. To the extent Canfield claims that its soda simply does not have the taste of chocolate fudge, however, all such a fact would prove is that Canfield has misdescribed its product. Even if Canfield’s soda" }, { "docid": "23528620", "title": "", "text": "central east coast before this time is unclear, but the amount is certainly small. Around this date and a decade after first marketing the soda, Canfield applied for the first time to the U.S. Patent and Trademark Office for protection of the designation “chocolate fudge” under the Lanham Act. That application was denied on May 23, 1985, on the decision of an examining attorney who found that “chocolate fudge” designates a flavor and as such is incapable of distinguishing the source of the goods. The examiner apparently considered chocolate fudge as applied to diet soda generic. Concord is a medium-sized bottler on the East Coast, producing both national “name” brands under license and a line of beverages under its housemark “Vintage.” Shortly after the Greene column appeared, and with the encouragement of its customers, Concord asked Canfield for a license to market diet chocolate fudge soda. The parties dispute whether Concord sought to license the entire name “Canfield’s Diet Chocolate Fudge Soda” or only the words “Chocolate Fudge Soda.” Failing to re ceive a positive response, Concord quickly produced its own diet chocolate fudge soda, which it successfully marketed under its “Vintage” mark. The can design of the resulting soda strongly resembled Can-field’s design; on both cans the names Can-field’s or Vintage appear in large, diagonal, red letters and the term chocolate fudge soda appears in smaller, diagonal, brown letters. Concord began distributing Vintage Diet Chocolate Fudge Soda sometime late April or May, 1985, at approximately the same time that Canfield’s Philadelphia licensee began introducing Canfield’s. On August 30,1985, Canfield commenced this suit in the United States District Court for the Eastern District of Pennsylvania claiming that Concord’s use of the phrase “diet chocolate fudge soda” constituted trademark infringement and unfair competition, in violation of state common law and § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), which governs unregistered trademarks. On September 3, 1985, Can-field moved for a preliminary injunction. After receiving evidence and hearing arguments, the district court filed a comprehensive and thoughtful opinion, denying the request for an injunction. The district court’s denial of the" }, { "docid": "23429432", "title": "", "text": "Sales have increased 100-fold to approximately 50 million cans per annum. The defendant, Vess Beverages, has bottled and sold soft drinks in the midwest since 1924. From 1979 until 1981 Vess produced a chocolate-flavored drink, labeled CHOCOLATE. The flavor was discontinued because of poor sales. After Greene’s article in January 1985, Vess reentered the market with a new formula (different ingredients and taste) and labeled it CHOCOLATE FUDGE. On April 4, 1985, Vess received a cease and desist letter from Canfield asserting trademark rights in the term CHOCOLATE FUDGE. Nevertheless Vess went on to produce cans and market the new drink using the designation CHOCOLATE FUDGE. On April 30, 1985, Vess issued a press release and advertisement announcing “Diet Chocolate Fudge Now Available From Vess.” Vess had no trouble getting shelf space for its product; in fact retailers called Vess seeking the new soda. This suit soon followed. Canfield brought this unfair competition action against Vess on May 2, 1985, under Section 43(a) of the Lanham Act and Illinois common law. Canfield, asserting trademark rights in the designation CHOCOLATE FUDGE for diet soda, claims Vess’ usage is unfair competition. On July 12, 1985, the district court granted Canfield’s motion for a preliminary injunction, which prohibited Vess from using CHOCOLATE FUDGE to market its soft drink, 612 F.Supp. 1081, required Vess to deliver up and destroy its current inventory labeled chocolate fudge, and required Canfield to post a surety bond of $60,000. Vess brings this interlocutory appeal under 28 U.S.C. § 1292(a) and raises the following issues: Vess argues that the district court abused its discretion in granting the injunction because (1) Canfield was not likely to prevail on the merits since (a) chocolate fudge is a common descriptive term and not protectable under trademark law or (b) it is merely descriptive without secondary meaning; (2) the balance of harms weighs in favor of Vess; (3) the public interest will be disserved due to lack of competition in diet chocolate fudge sodas; and (4) even if CHOCOLATE FUDGE is a protectable trademark, Vess has adopted a fair use of the term" }, { "docid": "647375", "title": "", "text": "In like manner, Canfield’s Chocolate Fudge carbonated diet soft drink will be referred to simply as \"Canfield’s Chocolate Fudge” throughout. Of course, as the remaining Findings and Conclusions make plain, that usage does not derogate from the determination that \"Chocolate Fudge” itself—without the prefatory \"Canfield’s”—is used as a trademark by Canfield. . NutraSweet is a trademark of G.D. Searle, Inc. (\"Searle”) for its artificial sweetener aspartame. . [Footnote by this Court] One of the matters discussed in Roland, 749 F.2d at 382-383 was the disconcerting habit of our Court of Appeals of stating this factor in the disjunctive in some cases but in the conjunctive in others (see, e.g., Fox Valley Harvestore, Inc. v. A. O. Smith Harvestore Products, Inc., 545 F.2d 1096, 1097 (7th Cir.1976))—usually without explaining why “or\" or “and” was the appropriate locution (Fox Valley, id. at 1097 n. 1 was an exception). . Vess's position on both Canfield’s preliminary injunction motion and Vess’s own summary judgment motion is in principal part syllogistic in nature: 1. As a matter of law, no designation of a flavor can qualify for trademark protection. 2. \"Chocolate Fudge” is nothing more than a flavor designation for Canfield's goods. 3. Chocolate Fudge therefore cannot be and is not a protectible Canfield trademark. Q.E.D. In part that analysis is legally flawed for the reasons demonstrated by these Findings and Conclusions. But Vess’s argument is also anachronistic and disingenuous in part. It invokes such authorities as William R. Warner & Co. v. Eli Lilly & Co., 265 U.S. 526, 529, 44 S.Ct. 615, 617, 68 L.Ed. 1161 (1924) and William Wrigley, Jr. & Co. v. Grove Co., 183 F. 99, 100-01 (2d Cir.1910), each of which was issued at a time when the law simply would not allow trademark protection of a \"merely descriptive” (let alone generic) name that had acquired secondary meaning. Those decisions were overtaken by passage of the Lanham Act, which specifically permits trademark protection for \"merely descriptive” terms that have acquired secondary meaning. See Act § 2(f), 15 U.S.C. § 1052(f), with its deliberate omission of Act § 2(e)—the “merely" }, { "docid": "23528630", "title": "", "text": "Folsom & Tepley, supra, at 1351 (same evidence can establish secondary meaning or de facto secondary meaning); 1 McCarthy, supra, § 12:15, at 432. Accordingly, although some courts have established a sliding scale, demanding stronger proof of secondary meaning as a designation becomes more descriptive, see American Heritage Life Ins. Co. v. Heritage Life Ins. Co., 494 F.2d 3, 11 (5th Cir.1974), Aloe Creme Laboratories, Inc. v. Milsan, Inc., 423 F.2d 845, 849-50 (5th Cir.1970), see generally 1 McCarthy, supra, § 15:12, at 687-85, evidence of secondary meaning is not even relevant if the term is arbitrary, suggestive or generic. See, e.g., Liquid Controls Corp. v. Liquid Control Corp., 802 F.2d 934, 938 n. 6 (7th Cir.1986) (discounting study that indicated secondary understanding of “liquid control” as not relevant to whether term is generic). Because a nonregistered mark has no presumption of validity, the burden of proving chocolate fudge soda suggestive or descriptive, as Canfield claims, lies on Can-field. See Technical Publishing Co. v. Lebhar-Friedman, Inc., 729 F.2d 1136 (7th Cir.1984); Anheuser Busch Inc. v. Stroh Brewery Co., 750 F.2d 631, 638 (8th Cir.1984); Reese Publishing Co. v. Hampton Int’l Commodities, 620 F.2d 7, 11 (2d cir.1980). III. IS “CHOCOLATE FUDGE” SODA SUGGESTIVE? We first consider whether the appellation “chocolate fudge” for diet soda is suggestive. The district court followed the standard set out in Stix Products, Inc. v. United Merchants & Manufacturers, Inc., 295 F.Supp. 479, 488 (S.D.N.Y.1968), which correctly stated the distinction between suggestive and descriptive terms as follows: A term is suggestive if it requires imagination, thought or perception to reach a conclusion as to the nature of goods. A term is descriptive if it forthwith conveys an immediate idea of the ingredients, qualities or characteristics of the goods. Accord 1 McCarthy, Trademarks and Unfair Competition § 11:21, at 491-92 (1984). Canfield’s argument that the term “diet chocolate fudge soda” is suggestive focus es on the word fudge. Canfield claims that the addition of the word “fudge” to chocolate does not describe a difference in flavor but merely conveys a concept of texture. Fudge, Canfield reminds us," }, { "docid": "23429438", "title": "", "text": "227 (E.D.Mich.1985) (Honey Baked Ham not generic term). However, the fact that chocolate fudge is merely descriptive of flavor does make it less likely that Canfield will be able to show secondary meaning. B. Merely Descriptive with Secondary Meaning A term is merely descriptive if it specifically describes a characteristic or an ingredient of a product. Miller, 561 F.2d at 79. By acquiring secondary meaning such a term can become a valid trademark. 15 U.S.C. § 1052(f); Miller, 561 F.2d at 79; Abercrombie, 537 F.2d at 10. A term acquires secondary meaning when the consumer associates it with the producer rather than the product. Wesley-Jessen Div. of Shering Corp. v. Bausch & Lomb, Inc., 698 F.2d 862 (7th Cir.1983); Harlequin Enterprises, Ltd. v. Gulf & Western Corp., 644 F.2d 946, 949 (2d Cir.1981). The focus is the attitude of the consuming public toward the designation. Walt-West Enterprises, Inc. v. Gannett Co., 695 F.2d 1050, 1057 (7th Cir.1982) (primary significance of the term in the minds of the public is not the product but the producer). Vess contends that it is unlikely that Canfield will succeed in showing secondary meaning, especially nationwide secondary meaning. First, Vess points out that the Patent Office has rejected Canfield’s application for trademark protection of CHOCOLATE FUDGE. Second, Canfield markets the term CHOCOLATE FUDGE along with its housemark, see supra note 1, citing Phillip Morris, Inc. v. R.J. Reynolds Tobacco Co., 188 U.S.P.Q. 289 (S.D.N.Y.1975). Third, Vess argues that there is insufficient evidence to show nationwide secondary meaning. Sufficient evidence was introduced at the preliminary injunction hearing to conclude that Canfield has a better than negligible chance of demonstrating secondary meaning. Although the Patent Office’s rejection of Canfield’s term is persuasive, it does not end the inquiry. See Keebler Co. v. Rovira Biscuit Co., 624 F.2d 366, 372-373 (1st Cir.1980); Vuitton Et Fils S.A. v. J. Young Enters., Inc., 644 F.2d 769, 776 (9th Cir.1981). For 13 years Canfield was the only soft drink company using the label CHOCOLATE FUDGE on a chocolate-flavored soft drink. The fact that only after Canfield’s success in early 1985 did" }, { "docid": "23528615", "title": "", "text": "OPINION OF THE COURT BECKER, Circuit Judge. This appeal concerns trademark rights in the phrase “Diet Chocolate Fudge Soda,” the name of a drink with which Plaintiff-Appellant, A.J. Canfield Co. (“Canfield”), has recently achieved meteoric success. In the district court, Canfield sought a preliminary injunction barring Defendant Concord Beverage Co. (“Concord”) from using this name in connection with a soft drink Concord sells in Pennsylvania, New Jersey, and New York. The district court refused to issue the injunction, A.J. Canfield Co. v. Concord Beverage Co., 629 F.Supp. 200 (E.D.Pa.1985), and Canfield appeals. 28 U.S.C. § 1292(a)(1). We must decide whether the designation “chocolate fudge” as applied to diet soda deserves protection as a trademark under the federal law of unfair competition. 15 U.S.C. § 1125(a) (Section 43(a) of the Lanham Act). The term is protectable if it is suggestive or if it is descriptive and is buttressed by proof of secondary meaning. The designation is unprotectable if it is generic or if it is descriptive but lacks sufficient secondary meaning. If the mark is protectable, we must also decide its geographic reach. At the present stage of the case, we hold the designation “chocolate fudge” for diet soda generic, hence unprotectable, on the basis of two essential considerations. First, as the district court justifiably found, the term “chocolate fudge” denotes a particular full and rich chocolate flavor, that distinguishes Canfield’s product from plain chocolate sodas. Second, on the basis of the present record, it appears difficult if not impossible for a competing producer to convey to the public that its product shares this functional flavor characteristic without using the words “chocolate fudge.” Unlike Athena, however, this conclusion does not emerge full grown from the existing jurisprudence. Indicative of this legal lacuna is the fact that three distinguished district judges have considered the level of inherent distinctiveness of chocolate fudge soda and have arrived at disparate conclusions. See A.J. Canfield Co. v. Vess Beverages, Inc., 612 F.Supp. 1081 (N.D.Ill.1985) (Shadur, J.), aff'd, 796 F.2d 903 (7th Cir.1986) (finding “a reasonable basis for considering term suggestive although even greater basis for holding" }, { "docid": "12243464", "title": "", "text": "such terms. Given modern telemarketing techniques, whoever obtains rights to such numbers and advertises them as LAWYERS (or MATTRESS) appears to have a significant competitive advantage. Id. at 675-76 (footnotes omitted). .Because a nonregistered mark carries no presumption of validity, the burden of proving the mark arbitrary, suggestive or descriptive lies with the plaintiff. Honickman, 808 F.2d at 297 (citations omitted). .The record contains the Philadelphia area \"yellow pages” advertisements of no fewer than twenty local lawyers and law firms in addition to those of Dranoff-Perlstein and Harris J. Sklar. Each of these advertisements contains the word \"injury\" or \"injured.” . Of course, if a term is too descriptive, it may be generic and unprotectible. See discussion of genericness, infra. . A mark that is entirely generic, however, may never be protected as a trademark or service mark. 1 McCarthy, supra, § 12:1, at 520. . Like the distinction between suggestive and descriptive terms, the descriptive-generic distinction is often somewhat elusive. See Honick-man, 808 F.2d at 296 n. 8 (citing cases noting difficulty of distinguishing between descriptive and generic terms). Compare Honickman, 808 F.2d at 308 (“chocolate fudge” generic as to diet soda) with A.J. Canfield Co. v. Vess Beverages, Inc., 796 F.2d 903, 906 (7th Cir.1986) (\"chocolate fudge\" descriptive as to diet soda); compare American Aloe Corp. v. Aloe Creme Lab., Inc., 420 F.2d 1248, 1252-53 (7th Cir.) (\"alo-\" generic for cosmetics), cert, denied, 398 U.S. 929, 90 S.Ct. 1820, 26 L.Ed.2d 91 (1970) with Aloe Creme Lab., Inc. v. Milsan, Inc., 423 F.2d 845, 848-49 (5th Cir.) (“alo-” descriptive of cosmetics), cert, denied, 398 U.S. 928, 90 S.Ct. 1818, 26 L.Ed.2d 90 (1970). . The Honickman court held that the introduction to the market of Canfield’s \"Diet Chocolate Fudge Soda\" resulted in the creation of a new genus: “diet sodas that taste like chocolate fudge.” Accordingly, it held the phrase \"chocolate fudge” to be generic and unprotectible. 808 F.2d at 308. But see Vess Beverages, 796 F.2d at 906 (“chocolate fudge” descriptive and protectible upon a showing of secondary meaning). . Dranoff-Perlstein’s advertisement in the Bell of Pennsylvania" }, { "docid": "23429433", "title": "", "text": "in the designation CHOCOLATE FUDGE for diet soda, claims Vess’ usage is unfair competition. On July 12, 1985, the district court granted Canfield’s motion for a preliminary injunction, which prohibited Vess from using CHOCOLATE FUDGE to market its soft drink, 612 F.Supp. 1081, required Vess to deliver up and destroy its current inventory labeled chocolate fudge, and required Canfield to post a surety bond of $60,000. Vess brings this interlocutory appeal under 28 U.S.C. § 1292(a) and raises the following issues: Vess argues that the district court abused its discretion in granting the injunction because (1) Canfield was not likely to prevail on the merits since (a) chocolate fudge is a common descriptive term and not protectable under trademark law or (b) it is merely descriptive without secondary meaning; (2) the balance of harms weighs in favor of Vess; (3) the public interest will be disserved due to lack of competition in diet chocolate fudge sodas; and (4) even if CHOCOLATE FUDGE is a protectable trademark, Vess has adopted a fair use of the term to describe the taste of its soda. Vess also argues that the $60,000 bond required of Canfield is inadequate. We affirm. I. STANDARD OF REVIEW Appellate review of preliminary injunction grants has been recently explained by this Court, see Lawson Products Inc. v. Avnet, Inc., 782 F.2d 1429, 1436-1438 (7th Cir.1986); American Hosp. Supply v. Hospital Products Ltd., 780 F.2d 589 (7th Cir.1986). The standard of review is extremely deferential, typically stated as abuse of discretion. Roland Machinery Corp. v. Dresser Indus., Inc., 749 F.2d 380, 384-385, 388-391 (7th Cir.1984). As was discussed in Lawson, the review of a grant of preliminary injunction is mixed. Factual determinations are reviewed under a clearly erroneous standard; legal conclusions are reviewed de novo. 782 F.2d at 1437. But the ultimate weighing and balancing that makes up the decision whether to issue a preliminary injunction is highly discretionary given substantial deference. Id. Thus our review is limited to determining “whether the judge exceeded the bounds of permissible choice in the circumstances, not what we would have done if we" }, { "docid": "23528622", "title": "", "text": "preliminary injunction flowed from its determination that Canfield had not demonstrated a likelihood of success on the merits. The court relied exclusively on federal law because Canfield had failed to pursue its state law claims in its briefs or at oral argument and because, the court noted, federal courts presume an identity of standards under federal and state law in the absence of any suggestion by the parties to the contrary. Analyzing the merits, the court first considered the designation’s level of inherent distinctiveness. It found the term “chocolate fudge soda” descriptive of the flavor of the soda but concluded that the term was not the name of the class of product, which the court considered to be diet chocolate sodas. Noting that a descriptive mark can acquire protected trademark status through the acquisition of “secondary meaning,” the court then considered whether “chocolate fudge soda” had acquired secondary meaning in Concord’s geographic market area. Relying on our decision in Natural Footwear, Ltd. v. Hart, Schaffner & Marx, 760 F.2d 1383 (3d Cir.), cert denied, — U.S. —, 106 S.Ct. 249, 88 L.Ed.2d 257 (1985), the court held that secondary meaning cannot exist in a market that plaintiff has not penetrated. Finding insufficient evidence of actual sales, growth trends, percentage of sales customers, or amount of product advertising to demonstrate market penetration, the court found that Canfield had not established secondary meaning in Concord’s area. The court then considered claims that Canfield had established secondary meaning in the term chocolate fudge soda in Chicago and thus could “prevent defendants from intentionally adopting the same or similar mark.” In its action for trademark infringement in Chicago against Vess Beverages, Inc., Canfield had gained a preliminary injunction based in part on its advertising and sales in the Midwest and in part on a study that purported to demonstrate identification of the term “chocolate fudge soda” with Canfield. The court assumed, without finding, that such secondary meaning existed in the Chicago area but still rejected Canfield’s claim. First, the court rejected Canfield’s claim based on the “secondary meaning in the making” doctrine, holding that" }, { "docid": "23528631", "title": "", "text": "Stroh Brewery Co., 750 F.2d 631, 638 (8th Cir.1984); Reese Publishing Co. v. Hampton Int’l Commodities, 620 F.2d 7, 11 (2d cir.1980). III. IS “CHOCOLATE FUDGE” SODA SUGGESTIVE? We first consider whether the appellation “chocolate fudge” for diet soda is suggestive. The district court followed the standard set out in Stix Products, Inc. v. United Merchants & Manufacturers, Inc., 295 F.Supp. 479, 488 (S.D.N.Y.1968), which correctly stated the distinction between suggestive and descriptive terms as follows: A term is suggestive if it requires imagination, thought or perception to reach a conclusion as to the nature of goods. A term is descriptive if it forthwith conveys an immediate idea of the ingredients, qualities or characteristics of the goods. Accord 1 McCarthy, Trademarks and Unfair Competition § 11:21, at 491-92 (1984). Canfield’s argument that the term “diet chocolate fudge soda” is suggestive focus es on the word fudge. Canfield claims that the addition of the word “fudge” to chocolate does not describe a difference in flavor but merely conveys a concept of texture. Fudge, Canfield reminds us, is made of sugar, butter, chocolate and cocoa, none of which are contained in diet soda. Because diet soda obviously has neither the ingredients nor the texture of chocolate fudge, Canfield argues that “chocolate fudge” communicates only that the sensation of drinking Canfield’s soda is similar in some way to the sensation of eating chocolate fudge. Because a fudge-like sensation is said to be difficult to imagine in a diet soda, Canfield claims the link requires imagination and is thus suggestive. As the district court found, this contention is unpersuasive in the first instance because chocolate fudge communicates a particular kind of chocolate taste, “a deep chocolate taste.” 629 F.Supp. at 208, 228 U.S.P.Q. at 484. The Greene article itself, which Canfield concedes sparked the demand for this soda, praised the soda because it “precisely duplicate^] the taste of chocolate fudge.” There is evidence in the record from which the district court might conclude that Canfield developed the soda by explicitly trying to duplicate the “taste” of chocolate fudge, as the Greene article stated. This" }, { "docid": "23528616", "title": "", "text": "we must also decide its geographic reach. At the present stage of the case, we hold the designation “chocolate fudge” for diet soda generic, hence unprotectable, on the basis of two essential considerations. First, as the district court justifiably found, the term “chocolate fudge” denotes a particular full and rich chocolate flavor, that distinguishes Canfield’s product from plain chocolate sodas. Second, on the basis of the present record, it appears difficult if not impossible for a competing producer to convey to the public that its product shares this functional flavor characteristic without using the words “chocolate fudge.” Unlike Athena, however, this conclusion does not emerge full grown from the existing jurisprudence. Indicative of this legal lacuna is the fact that three distinguished district judges have considered the level of inherent distinctiveness of chocolate fudge soda and have arrived at disparate conclusions. See A.J. Canfield Co. v. Vess Beverages, Inc., 612 F.Supp. 1081 (N.D.Ill.1985) (Shadur, J.), aff'd, 796 F.2d 903 (7th Cir.1986) (finding “a reasonable basis for considering term suggestive although even greater basis for holding it merely descriptive”); Canfield v. Concord Beverages Co. (Scirica, J.) (holding term descriptive); Yoo-Hoo Chocolate Beverages Corp. v. A.J. Canfield Co., 229 U.S.P.Q. 653 (D.N.J.1986) (Sarokin, J.) [Available on WEST-LAW, DCTU database] (finding term generic), appeal stayed per stipulation, App. No. 86-5584 (3d Cir. Oct. 17, 1986). The jurisprudence of generieness revolves around the primary significance test, which inquires whether the primary significance of a term in the minds of the consuming public is the product or the producer. The primary significance test, however, cannot be applied until after we have decided the question that lies at the core of this case: whether the relevant product category or genus for purposes of evaluating genericness is chocolate soda or chocolate fudge soda. In order to resolve this initial question, we must develop a test that is congruent with general principles of trademark law and the primary significance test. We conclude that when a producer introduces a product that differs from an established product class in a significant, functional characteristic, and uses the common descriptive term of" }, { "docid": "23528621", "title": "", "text": "response, Concord quickly produced its own diet chocolate fudge soda, which it successfully marketed under its “Vintage” mark. The can design of the resulting soda strongly resembled Can-field’s design; on both cans the names Can-field’s or Vintage appear in large, diagonal, red letters and the term chocolate fudge soda appears in smaller, diagonal, brown letters. Concord began distributing Vintage Diet Chocolate Fudge Soda sometime late April or May, 1985, at approximately the same time that Canfield’s Philadelphia licensee began introducing Canfield’s. On August 30,1985, Canfield commenced this suit in the United States District Court for the Eastern District of Pennsylvania claiming that Concord’s use of the phrase “diet chocolate fudge soda” constituted trademark infringement and unfair competition, in violation of state common law and § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), which governs unregistered trademarks. On September 3, 1985, Can-field moved for a preliminary injunction. After receiving evidence and hearing arguments, the district court filed a comprehensive and thoughtful opinion, denying the request for an injunction. The district court’s denial of the preliminary injunction flowed from its determination that Canfield had not demonstrated a likelihood of success on the merits. The court relied exclusively on federal law because Canfield had failed to pursue its state law claims in its briefs or at oral argument and because, the court noted, federal courts presume an identity of standards under federal and state law in the absence of any suggestion by the parties to the contrary. Analyzing the merits, the court first considered the designation’s level of inherent distinctiveness. It found the term “chocolate fudge soda” descriptive of the flavor of the soda but concluded that the term was not the name of the class of product, which the court considered to be diet chocolate sodas. Noting that a descriptive mark can acquire protected trademark status through the acquisition of “secondary meaning,” the court then considered whether “chocolate fudge soda” had acquired secondary meaning in Concord’s geographic market area. Relying on our decision in Natural Footwear, Ltd. v. Hart, Schaffner & Marx, 760 F.2d 1383 (3d Cir.), cert denied, —" }, { "docid": "12243465", "title": "", "text": "between descriptive and generic terms). Compare Honickman, 808 F.2d at 308 (“chocolate fudge” generic as to diet soda) with A.J. Canfield Co. v. Vess Beverages, Inc., 796 F.2d 903, 906 (7th Cir.1986) (\"chocolate fudge\" descriptive as to diet soda); compare American Aloe Corp. v. Aloe Creme Lab., Inc., 420 F.2d 1248, 1252-53 (7th Cir.) (\"alo-\" generic for cosmetics), cert, denied, 398 U.S. 929, 90 S.Ct. 1820, 26 L.Ed.2d 91 (1970) with Aloe Creme Lab., Inc. v. Milsan, Inc., 423 F.2d 845, 848-49 (5th Cir.) (“alo-” descriptive of cosmetics), cert, denied, 398 U.S. 928, 90 S.Ct. 1818, 26 L.Ed.2d 90 (1970). . The Honickman court held that the introduction to the market of Canfield’s \"Diet Chocolate Fudge Soda\" resulted in the creation of a new genus: “diet sodas that taste like chocolate fudge.” Accordingly, it held the phrase \"chocolate fudge” to be generic and unprotectible. 808 F.2d at 308. But see Vess Beverages, 796 F.2d at 906 (“chocolate fudge” descriptive and protectible upon a showing of secondary meaning). . Dranoff-Perlstein’s advertisement in the Bell of Pennsylvania Yellow Pages lists the following practice areas: \"Auto accidents,\" \"Septa accidents,” \"Dangerous products,” \"Railroad/aviation,\" \"Medical malpractice,” \"Wrongful death,” “Slip & Fall,” “Motorcycle accidents,” \"Toxic torts,\" \"Work injuries,\" \"Insurance claims,” and \"Serious injuries.” All of these types of cases tend to involve some sort of physical injury to the plaintiff; hence the telephone number, \"IN-J-U-R-Y-l.” . As discussed above, generic terms may never receive trademark protection, while descriptive terms are protectible only upon a showing of \"secondary meaning.” . In Country Floors, Inc. v. Partnership of Gepner & Ford, 930 F.2d 1056, 1063 (3d Cir.1991), this court held that “[a] person is liable to the owner of a mark under § 32 of the Lanham Act if he uses a confusingly similar mark. The marks need not be identical, only confusingly similar.” Here, however, plaintiff alleges a violation of only § 43(a) of the Lanham Act; plaintiffs Complaint makes no mention of § 32, which deals with registered marks. A finding of infringement under § 43(a) must be based on a \"likelihood of confusion,” rather than" }, { "docid": "23429449", "title": "", "text": "diet chocolate fudge soda line. Vess estimates its minimum expected profits to be $625,000. Again, the district court’s September 11, 1985, order (see supra note 2) renders most of this complaint somewhat moot because Vess will be able to enter the diet chocolate soda market and profit from sales of its soda. To the extent that Vess argues it would have made more money if allowed to use the term CHOCOLATE FUDGE, the difference in profits should be adequately protected by the $60,000. The district court did not abuse its discretion. For these reasons we affirm the preliminary injunction order of the district court prohibiting Vess from using the term CHOCOLATE FUDGE on its diet chocolate soda cans. . The housemark is \"Canfield\" in script topped by a crown and all surrounded with a large \"C.” . On September 11, 1985, the district court amended the preliminary injunction order allowing Vess to sell its inventory of filled cans by striking the term \"fudge\" and replacing it with “soda.” Under this order Vess may continue to market its diet chocolate soda as long as it does not use the term CHOCOLATE FUDGE. . Vess does not argue that the district court erred in concluding that Canfield could demonstrate a likelihood of confusion between the two sodas. Therefore, we address only whether Canfield has a chance of succeeding on the issue of a valid trademark. . In its brief Vess claims that the preliminary injunction order allows only $20,000 of the $60,-000 bond to cover its inventory loss. We cannot discern from the order such a division of the bond proceeds and so assume that the $60,000 is meant to cover all related costs. CUDAHY, Circuit Judge, concurring in part and dissenting in part: I agree that there is an adequate, but hardly ample, basis for affirming the preliminary injunction in all respects except its nationwide scope. I do not believe, however, that there is a credible basis for showing nationwide secondary meaning. Bob Greene’s article led to some publicity for diet chocolate fudge soda outside Chicago. In addition substantial sales have" }, { "docid": "23429450", "title": "", "text": "market its diet chocolate soda as long as it does not use the term CHOCOLATE FUDGE. . Vess does not argue that the district court erred in concluding that Canfield could demonstrate a likelihood of confusion between the two sodas. Therefore, we address only whether Canfield has a chance of succeeding on the issue of a valid trademark. . In its brief Vess claims that the preliminary injunction order allows only $20,000 of the $60,-000 bond to cover its inventory loss. We cannot discern from the order such a division of the bond proceeds and so assume that the $60,000 is meant to cover all related costs. CUDAHY, Circuit Judge, concurring in part and dissenting in part: I agree that there is an adequate, but hardly ample, basis for affirming the preliminary injunction in all respects except its nationwide scope. I do not believe, however, that there is a credible basis for showing nationwide secondary meaning. Bob Greene’s article led to some publicity for diet chocolate fudge soda outside Chicago. In addition substantial sales have been made by Canfield’s licensed bottlers in other parts of the country. But, until as late as January, 1985, Canfield sold its diet fudge soda only in the Midwest. The majority speculates that “in those areas outside Canfield’s usual market Canfield and diet chocolate fudge soda are more likely to be synonymous terms because they would have heard of neither before the media blitz.” But there is absolutely no survey evidence to even suggest the possibility of nationwide secondary meaning. I would require more than has been shown here to support a nationwide injunction — even of a preliminary nature. See A.J. Canfield Co. v. Concord Beverage Co., 629 F.Supp. 200, 209-212 (E.D.Pa.1985). I therefore respectfully dissent as to the scope of relief." }, { "docid": "23528633", "title": "", "text": "focus on the chocolate fudge taste was then echoed in many of the articles that followed the initial Greene column. The district court also found that many food products are designated by the terms “chocolate fudge.” Canfield argues that all but one of the examples adduced by Concord have the consistency and ingredients found in chocolate fudge, suggesting that we can infer that “fudge” refers to consistency not to flavor. But we note that many of these products also have plain chocolate versions. To demonstrate that the addition of the word fudge refers to consistency not flavor, Canfield must demonstrate that the chocolate fudge versions are more like chocolate fudge in consistency than their plain chocolate equivalents. Canfield offers no evidence on this point. Significantly, many of the products specifically indicate that their name refers only to taste, calling themselves “chocolate fudge flavor.” Furthermore, at least one of Concord’s examples, a diet chocolate fudge drink by Carnation, is not claimed to have anything like the consistency of chocolate fudge. The district court justifiably inferred that the use of the term fudge communicates a variation of chocolate flavor not consistency. Because chocolate fudge denotes a flavor, no imagination is required for a potential consumer to reach a conclusion about the nature of Canfield’s soda. In accordance with the accepted definitions, “chocolate fudge” as applied to diet soda cannot be suggestive. IV. IS CHOCOLATE FUDGE AS APPLIED TO DIET SODA DESCRIPTIVE OR GENERIC? The question remains whether the term “chocolate fudge” as applied to diet soda is descriptive because it only describes characteristics or functions of the product or whether it is so commonly descriptive of the name of the product that we should consider it generic. See Salton Inc. v. Cornwall Corp., 477 F.Supp. 975, 984-87 (1979). That in turn depends on how we define the relevant product category, or “genus.” See Park ’N Fly, 105 S.Ct. at 661-62 (“A generic term is one that refers to the genus of which the particular product is a species.”). The district court found that chocolate fudge as applied to diet soda is not" }, { "docid": "23528660", "title": "", "text": "only one resolution of the factual issue.” Pullman Standard v. Swint, 456 U.S. 273, 291-92, 102 S.Ct. 1781, 1792, 72 L.Ed.2d 66 (1982). At the present stage of this case, we believe that application of our holding to the present record plainly demonstrates that Canfield has not sustained its burden of proving that chocolate fudge, as applied to diet soda, is not generic. Canfield must make such a showing to demonstrate a likelihood of success on the merits that would justify a preliminary injunction in its favor. Kershner v. Mazurkiewicz, 670 F.2d 440, 443 (3d Cir.1982). Application of our rule to this case is straightforward. Canfield had the good fortune of originating a soda idea, a diet soda tasting like chocolate fudge, that proved eventually to have extraordinary appeal. Largely through the Bob Greene article, and through the press reports that followed it, abetted by Canfield’s own advertising, Canfield sparked a nationwide demand for its soda. All these forms of publicity have highlighted the functional difference between a soda tasting like chocolate fudge and a mere chocolate soda, an established product class, suggesting that much of the demand for this soda arises because of its flavor. The term “chocolate fudge” is a common descriptive explanation of that functional difference. Accordingly, the relevant product class is not diet chocolate sodas but diet sodas that taste like chocolate fudge. Having determined the relevant product genus, we must examine the need of Can-field’s competitors to use the term “chocolate fudge.” Often, this examination will require a factual analysis of alternative terms. Flavors, however, have unique characteristics, and we can imagine no term other than “chocolate fudge” that communicates the same functional information, namely, that this soda has the taste of chocolate fudge, a particular, full, rich chocolate taste. (The preliminary injunctive record reveals no alternative terms either.) Notwithstanding Canfield’s role in creating the demand for this kind of product, the trademark laws do not give it the right to be the sole producer of a diet soda tasting like chocolate fudge. Such a right could only come from the patent laws. Accordingly, we" }, { "docid": "23429436", "title": "", "text": "success as to both issues. Although Canfield may not have a substantial chance of prevailing at trial, see Yoo Hoo Beverage Corp. v. A.J. Canfield Co., No. 85-3701 HLS (D.N.J. March 19, 1986) [available on WESTLAW, DCTU database] (district court denied Can-field’s petition for preliminary injunction); A.J. Canfield Co. v. Concord Beverage Co., 629 F.Supp. 200 (E.D.Pa.1985) (same), we cannot say its chances are less than negligible, and therefore affirm. A. Generic or Common Descriptive Term According to Vess, the term CHOCOLATE FUDGE is not trademarkable because it simply describes a flavor and is thus a common descriptive term. A generic or common descriptive term is defined as one commonly used as the name or description of a kind of goods. Miller Brewing Co. v. G. Heileman Brewing Co., 561 F.2d 75, 79 (7th Cir.1977), certiorari denied, 434 U.S. 1025, 98 S.Ct. 751, 54 L.Ed.2d 772; Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 10 (2d Cir.1976) (“term that refers to the genus of which the particular product is a species”). A term that is generic for one particular product may be arbitrary for another; for example Ivory soap versus products made with tusks. Abercrombie, 537 F.2d at 9 & n. 6; In re Seats, 757 F.2d 274 (Fed.Cir.1985). Vess’ primary argument is that chocolate fudge is a flavor of soda (like cherry or orange soda), which makes the term a common descriptive one. The district court disagreed, finding that chocolate fudge was not a flavor term. We disagree with the district court, but that does not mean agreement with Vess’ conclusion that a flavor term must be a common descriptive term. See In re Andes Candies, 478 F.2d 1264 (C.C.P.A.1973) (unusual flavor name for candy industry not generic). The district court was not incorrect in deciding that chocolate fudge is a unique enough designation with respect to sodas so that it is not a common descriptive term. See In re Andes Candies, 478 F.2d 1264; Borden, Inc. v. Topps Gum, Inc., 173 U.S.P.Q. 447 (T.T.A.B.1972) (ice cream gum not generic term); Schmidt v. Quigg, 609 F.Supp." }, { "docid": "23429439", "title": "", "text": "Vess contends that it is unlikely that Canfield will succeed in showing secondary meaning, especially nationwide secondary meaning. First, Vess points out that the Patent Office has rejected Canfield’s application for trademark protection of CHOCOLATE FUDGE. Second, Canfield markets the term CHOCOLATE FUDGE along with its housemark, see supra note 1, citing Phillip Morris, Inc. v. R.J. Reynolds Tobacco Co., 188 U.S.P.Q. 289 (S.D.N.Y.1975). Third, Vess argues that there is insufficient evidence to show nationwide secondary meaning. Sufficient evidence was introduced at the preliminary injunction hearing to conclude that Canfield has a better than negligible chance of demonstrating secondary meaning. Although the Patent Office’s rejection of Canfield’s term is persuasive, it does not end the inquiry. See Keebler Co. v. Rovira Biscuit Co., 624 F.2d 366, 372-373 (1st Cir.1980); Vuitton Et Fils S.A. v. J. Young Enters., Inc., 644 F.2d 769, 776 (9th Cir.1981). For 13 years Canfield was the only soft drink company using the label CHOCOLATE FUDGE on a chocolate-flavored soft drink. The fact that only after Canfield’s success in early 1985 did companies, which has previously sold diet chocolate soda, begin using the term CHOCOLATE FUDGE to designate the drink is evidence of a secondary meaning. See Harlequin, 644 F.2d at 949. Canfield has spent substantial amounts in advertising and promotion of its diet chocolate fudge soda. Telemed Corp. v. Tel-Med, Inc., 588 F.2d 213, 216-217 (7th Cir.1978) (quoting 3 R. Callman, Unfair Competition and Trade-Marks § 82.1 (2d ed.). Additionally, Canfield’s diet chocolate fudge soda has received nationwide publicity, first with Greene’s article, which is syndicated in 80 newspapers across the country,, then followed by newspapers and magazines of nationwide circulation (The New York Times, Time, and People). This was followed by dramatic increases in sales for Canfield. Canfield has also received numerous letters and phone calls, all searching for the elusive diet chocolate fudge drink. This evidence is sufficient to show that when consumers think of diet chocolate fudge soda they think of Canfield. Harlequin, 644 F.2d at 949; WesleyJessen, 698 F.2d at 866. This also supports the scope of injunction despite Canfield’s initial limited" } ]

[ { "docid": "7779475", "title": "", "text": "appellees violated his Eighth Amendment right to be free of cruel and unusual punishment by using excessive force against him and being deliberately indifferent to his medical needs. Appellees moved the district court to dismiss Miller’s complaint, as amended, for failure to allege a constitutional violation. The district court denied their motion. After filing an answer, appellees filed a motion, styled “Defendants’ Motion to Dismiss and Motion for Summary Judgment,” in which they argued that appellant failed to exhaust his administrative remedies before bringing suit. Appellees contended that Miller failed to exhaust his administrative remedies, as required by 42 U.S.C. § 1997e(a), because he did not sign and date the grievance form. On August 28, 1998, the district court granted appellees’ motion and dismissed Miller’s case without prejudice. The court found that Miller failed to exhaust his administrative remedies because he did not follow the GDC’s grievance procedures, which required that he sign and date his grievance form. This appeal followed. II. We review de novo dismissals for failure to exhaust administrative remedies under section 1997e(a). See Alexander v. Hawk, 159 F.3d 1321, 1323 (11th Cir.1998). Prison inmates have a constitutional right of access to the courts. See Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 2180, 135 L.Ed.2d 606 (1996) (stating that prisoners must be afforded “a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts”) (internal quotation marks omitted). Section 1997e(a) sets forth the procedures prisoners must follow in exercising their fundamental right of access to the courts. Under this provision, prisoners must exhaust any administrative remedies available to them before filing a suit in federal court based on violations of constitutional rights. Specifically, section 1997e(a) provides that: [n]o action shall be brought with respect to prison conditions under Section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). An inmate incarcerated in a state prison, thus, must first comply with the grievance procedures established by" } ]

[ { "docid": "23384281", "title": "", "text": "enter an inmate's cell and forcibly restrain and remove him. Thomas, 2009 WL 64616, at *2. Cell extractions used to be the DOC's primary method of gaining an inmate's compliance with an order until 1999 when an inmate, Frank Valdes, died at FSP as a result of this practice, likely due to severe beating. Id. . Dr. Springer erroneously noted in McKinney’s record that he had been classified as an S-3 inmate for his entire period of incarceration, which is inaccurate based on the record, which indicates that at this time he had already been given a higher classification on at least one occasion, when he was designated an S-5 inmate on March 13, 2003, while at UCI. Thomas, 2009 WL 64616, at *16 & n. 35. . The Prison Litigation Reform Act (“PLRA”) also mandates that a plaintiff inmate exhaust administrative remedies prior to filing an Eighth Amendment suit. 42 U.S.C. § 1997e(a); Chandler v. Crosby, 379 F.3d 1278, 1286 (11th Cir.2004). The district court concluded that the plaintiffs had adequately exhausted their administrative remedies under the PLRA, a finding the parties have not contested on appeal. . The Eleventh Circuit, in an en banc decision, Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. . For example, in the plaintiffs’ pre-trial brief, they candidly highlighted the issue of which Eighth Amendment standard should apply, admitting that their case did not \"fit neatly into either category” of Eighth Amendment claims. The plaintiffs then made the argument, which the district court ultimately adopted, that the deliberate-indifference standard was more appropriate for this case because the plaintiffs challenge a broad “eight-year policy of an entire department” not deserving of the deference given to a single guard's decision to use force in an individual incident of alleged excessive force. At trial, the plaintiffs again emphasized that although this case implicates the \"use of force,” it is about \"existing conditions.” The district court also plainly indicated at trial that it understood this case \"not to be" }, { "docid": "7568564", "title": "", "text": "prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). Defendants argue that plaintiffs claim of medical indifference is “brought with respect to prison conditions” and that plaintiffs failure to exhaust “such administrative remedies as are available” requires dismissal of his case. Plaintiff argues that section 1997e(a) does not apply because a claim for deliberate indifference to medical needs is not a claim “brought with respect to prison conditions” and because the remedy of monetary damages is not “available” in Green Haven’s grievance procedures. B. The Legislative History The PLRA, as initially introduced in the House and the Senate, was part of two omnibus criminal law reform measures— the Taking Back Our Streets Act of 1995 in the House, and the Violent Crime Control and Law Enforcement Improvement Act of 1995 in the Senate. See Bernard D. Reams, Jr. & William H. Manz, A Legislative History of the Prison Litigation Reform Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321, Docs. No. 32 & 33 (1997) (“PLRA Legislative History”). The bills were intended to address numerous issues raised in then-recent political campaigns relating to crime, law enforcement and prisoners, and included proposals to change habeas corpus, criminal sentencing, the exclusionary rule, and other law enforcement programs. Ultimately, the PLRA was passed as a rider to an appropriations bill. See Alexander v. Hawk, 159 F.3d 1321, 1325 n. 8 (11th Cir.1998); Garrett v. Hawk, 127 F.3d 1263, 1265 n. 2 (10th Cir.1997). The legislative history giving rise to the PLRA is relatively sparse. See Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884, 891 (S.D.N.Y.1998) (Mukasey, J.) (noting that legislative history is “relatively meager”). Floor debates are perhaps the best source. See Alexander, 159 F.3d at 1325 n. 8; Garrett, 127 F.3d at 1265 n. 2; see also Greig v. Goord, 169 F.3d 165, 167 (2d Cir.1999) (relying upon statements of Senators Dole and Kyi). The legislative history that exists is scattered among all the other measures that were part of the omnibus legislation, and mostly relates to funding, consent decree and habeas corpus" }, { "docid": "22088078", "title": "", "text": "administrative process turns out? The version of § 1997e(a) that predated the PLRA permitted a court to “continue such case for a period of not to exceed 180 days in order to require exhaustion of such plain, speedy, and effective administrative remedies as are available.” In 1996 Congress deleted the requirement that the administrative remedy be “plain, speedy, and effective”, and when these words left the statute so did any warrant to inquire whether exhaustion would be unavailing. Thus we agree once again with the eleventh circuit in Alexander, 159 F.3d at 1325-27: There is no futility exception to § 1997e(a). (Notice, by the way, that the difference between the pre-1996 version of § 1997e(a), which allowed a judge to “continue” the suit, and the plra version, which makes exhaustion a precondition to suit, also supports our principal conclusion that a case filed before exhaustion has been accomplished must be dismissed.) A second and related contention is that no administrative “remedies” are “available” because Perez wants only money damages, which Wisconsin’s administrative process cannot provide. Let us suppose that Wisconsin never offers financial compensation to a prisoner (though we can’t see any rule that prevents it, and cases such as West v. Gibson, — U.S. -, 119 S.Ct. 1906, 144 L.Ed.2d 196 (1999), show that some agencies, at least, award compensatory damages). Still, the statutory question is whether any “remedies” are “available”; § 1997e(a) does not require the prison to use the prisoner’s preferred remedy. Alexander holds that a prisoner cannot avoid § 1997e(a) just by limiting his demand in court to money, see 159 F.3d at 1326-28, and on this issue too we agree with the eleventh circuit — though several courts of appeals have gone the other way. See Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir.1998); Lunsford v. Jumao-As, 155 F.3d 1178 (9th Cir.1998); Garrett v. Hawk, 127 F.3d 1263, 1267 (10th Cir.1997). Courts that treat suits for money damages as unaffected by § 1997e(a) rely on McCarthy v. Madigan, 503 U.S. 140, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). Until the plra, there was no" }, { "docid": "22053883", "title": "", "text": "1997e(a) granted district courts discretion whether to require a prisoner to exhaust his administrative remedies. A district court’s dismissal for failure to exhaust was reviewed only for abuse of discretion. See Irwin v. Hawk, 40 F.3d 347, 348 (11th Cir.1994); see also McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 1086, 117 L.Ed.2d 291 (1992) (noting, in the pre-PLRA context, that “where Congress has not clearly required exhaustion, sound judicial discretion governs”). As outlined in detail later, Congress now has mandated exhaustion in the PLRA. 42 U.S.C. § 1997e(a). Other circuits have held that the standard of review of dismissals for failure to exhaust under the PLRA is de novo. See Jenkins v. Morton, 148 F.3d 257, 259 (3d Cir.1998) (exercising “plenary review” of a district court’s dismissal for failure to exhaust administrative remedies under PLRA’s section 1997e(a)); White v. McGin-nis, 131 F.3d 593, 595 (6th Cir.1997) (reviewing de novo district court’s dismissal pursuant to PLRA’s section 1997e(a) for failure to exhaust remedies); Garrett v. Hawk, 127 F.3d 1263, 1264 (10th Cir.1997) (same). While this issue has not been addressed, this Circuit repeatedly has held that a district court’s interpretation and application of a statute are subject to de novo review. See, e.g., Ochran v. United States, 117 F.3d 495, 499 (11th Cir.1997) (“We review de novo the district court’s ... interpretation and application of the statutory provisions.”); Powers v. United States, 996 F.2d 1121, 1123 (11th Cir.1993) (“We review de novo a district court’s interpretation and application of a statute.”). Thus, we likewise conclude that the district court’s interpretation of section 1997e(a)’s exhaustion requirements and application of section 1997e(a) to Alexander’s claims are subject to de novo review. III. Discussion A. Section 1997e(a) of the PLRA Section 1997e(a) of the PLRA mandates that “no action shall be brought” by a prisoner under any federal law until the prisoner has exhausted all “administrative remedies as are available,” as follows: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison" }, { "docid": "22277667", "title": "", "text": "actions (save for habeas petitions) to § 1997e(a)’s exhaustion requirements even more clear. It did so by employing the language it did in § 3626(g)(2). In § 3626(g)(2), Congress included both the “conditions of confinement” language, which was enough in McCarthy to encompass all prisoner petitions, and the “effects of actions by government officials” language, which, on natural reading, more closely refers to isolated, episodes of unconstitutional conduct at the hands of prison officials — such as the instances of unconstitutional excessive force alleged in the case at bar. The addition of the language in § 3626(g)(2) avoids the plain meaning problem with the statute at issue in McCarthy, and it clarifies Congress’s intent to subject all inmate actions to the PLRA’s exhaustion requirement. The context of the PLRA supports this conclusion. The PLRA was plainly intended, at least in part, to “reduce the intervention of federal courts into the management of the nation’s prison systems.” Freeman v. Francis, 196 F.3d 641, 644 (6th Cir.1999). Congress would only undermine this objective by carving out certain types of actions from the aegis of the PLRA. Therefore, we believe that the expansive and somewhat overlapping language Congress employed in § 3626(g)(2) must be read — naturally and in its proper context — to encompass all prisoner petitions. The only court of appeals explicitly to address the question agrees with our conclusion. Relying on McCarthy and the definition of “action with respect to prison conditions” in § 3626(g)(2), the Court of Appeals for the Sixth Circuit recently held “that the term ‘prison conditions’ as used in § 1997e includes claims of excessive force....” Freeman, 196 F.3d at 644. The Courts of Appeals for the Fifth and Tenth Circuits have implicitly reached the same conclusion — that excessive force actions are “prison conditions” actions and subject to the exhaustion requirements set forth in § 1997e(a) — without discussing the precise argument raised by Booth and adopted by the dissent. See Wendell v. Asher, 162 F.3d 887, 889, 891-92 (5th Cir.1998) (applying § 1997e(a)’s exhaustion requirement to inmate-plaintiffs excessive force claim); Garrett v. Hawk, 127" }, { "docid": "23033219", "title": "", "text": "defendants’ brief is to be believed, Meadows retired in September 2006, which was a month after Turner filed his lawsuit. “[A]n administrative remedy that is unavailable until after the lawsuit is filed is not an available remedy within the meaning of § 1997e(a)’s exhaustion requirement .Goebert, 510 F.3d at 1324. If Meadows retired when the defendants say that he did, that does not affect the availability of Turner’s administrative remedies before this lawsuit was filed. VI. There are disputed factual issues that may affect determination of whether the remedy of appealing the unfavorable response, or lack of any response, to Turner’s formal grievance was available to him. For example, the parties dispute whether Warden Meadows actually tore up Turner’s formal grievance and threatened him. Until the district court decides that and any other relevant factual issues, it would be premature to apply to this case the standard we announce today. See Bryant, 530 F.3d at 1374; see also Tarlton v. United States, 429 F.2d 1297, 1298 (5th Cir.1970) (remanding a pre-PLRA prisoner case to the district court for factfinding on the exhaustion of administrative remedies issues); Hess v. Blackwell, 409 F.2d 362, 363 (5th Cir.1969) (same). In any event, we would prefer for the district court in the first instance to apply the standard to the facts it finds in this case. The judgment is VACATED and the case is REMANDED for further proceedings consistent with this opinion. . See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc) (adopting as binding precedent in the Eleventh Circuit all decisions of the former Fifth Circuit announced prior to October 1, 1981)." }, { "docid": "22584073", "title": "", "text": "PER CURIAM: Robert Powe appeals the dismissal of his 42 U.S.C. § 1983 complaint. He contends that the district court erred in dismissing, without prejudice, his failure-to-protect claim and conspiracy claim for failure to exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e. Joining the other circuits that have explicitly addressed this issue, we proceed by reviewing the dismissal de novo. See Alexander v. Hawk, 159 F.3d 1321, 1323 (11th Cir.1998); Jenkins v. Morton, 148 F.3d 257, 259 (3d Cir.1998); White v. McGinnis, 131 F.3d 593, 595 (6th Cir.1997); Garrett v. Hawk, 127 F.3d 1263, 1264 (10th Cir.1997). Section 1997e, as amended by the Prison Litigation Reform Act, provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a) (West Supp.1998). The Texas Department of Criminal Justice currently provides for a two-step procedure for presenting administrative grievances. See Wendell v. Asher, 162 F.3d 887, 891 (5th Cir.1998) (citing Texas Department of Criminal Justice, Administrative Directive No. AD-03.-82 (rev.l) (Jan. 31,1997)). We have reviewed the record, which contains Powe’s step 1 and step 2 grievances, in which he alleged that the defendant officers had failed to protect him after he told them that another inmate had threatened him and that they had tried to cover up their failure to protect him by issuing a bogus disciplinary case. Because Powe presented these claims through the prison grievance system, the district court erred in dismissing the complaint in part for failure to exhaust. The district court held that Powe had failed to exhaust his administrative remedies as to these claims because the prison’s response to his step 2 grievance had failed specifically to address some of his arguments. Powe filed his step 2 grievance on May 12, 1997. The prison system had forty days to provide its response to it. Powe did not file this suit until September 30, 1997, well after the due date" }, { "docid": "22277668", "title": "", "text": "types of actions from the aegis of the PLRA. Therefore, we believe that the expansive and somewhat overlapping language Congress employed in § 3626(g)(2) must be read — naturally and in its proper context — to encompass all prisoner petitions. The only court of appeals explicitly to address the question agrees with our conclusion. Relying on McCarthy and the definition of “action with respect to prison conditions” in § 3626(g)(2), the Court of Appeals for the Sixth Circuit recently held “that the term ‘prison conditions’ as used in § 1997e includes claims of excessive force....” Freeman, 196 F.3d at 644. The Courts of Appeals for the Fifth and Tenth Circuits have implicitly reached the same conclusion — that excessive force actions are “prison conditions” actions and subject to the exhaustion requirements set forth in § 1997e(a) — without discussing the precise argument raised by Booth and adopted by the dissent. See Wendell v. Asher, 162 F.3d 887, 889, 891-92 (5th Cir.1998) (applying § 1997e(a)’s exhaustion requirement to inmate-plaintiffs excessive force claim); Garrett v. Hawk, 127 F.3d 1263, 1264-66 (10th Cir.1997) (same). In the margin, we respond, in part, to the dissent’s adoption of Booth’s position. C. Booth attempts to buttress his reading of § 1997e(a) by pointing to Supreme Court precedent that has drawn a distinction between excessive force claims and prison condition claims. When pressed by logic, however, this argument proves as brittle as the analysis it was erected to support. A familiar maxim of statutory construction provides that “ ‘[w]here Congress uses terms that have accumulated settled meaning under either equity or the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.’ ” United States v. Rosero, 42 F.Sd 166, 171 (3d Cir.1994) (quoting NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 69 L.Ed.2d 672 (1981)). Invoking this maxim, Booth cites two recent Supreme Court cases in which the Court distinguished between conditions-of-confinement claims and excessive force claims, and treated the two types of claims differently. See Farmer v. Brennan, 511" }, { "docid": "23266242", "title": "", "text": "the award of monetary relief, he is not subject to the exhaustion requirement because there is no administrative remedy \"available” to him. We note, however, that other circuits have divided over this issue. Compare Nyhuis v. Reno, 204 F.3d 65 (3d Cir.2000) (exhaustion required); Massey v. Helman, 196 F.3d 727 (7th Cir.1999) (same), petition for cert, filed, No. 99-1918 (May 30, 2000); Wyatt v. Leonard, 193 F.3d 876 (6th Cir.1999) (same); and Alexander v. Hawk, 159 F.3d 1321 (11th Cir.1998) (same), with Rumbles v. Hill, 182 F.3d 1064 (9th Cir.1999) (exhaustion not required), cert. denied, -U.S. - — •, 120 S.Ct. 787, 145 L.Ed.2d 664 (2000); Whitley v. Hunt, 158 F.3d 882 (5th Cir.1998) (same); and Garrett v. Hawk, 127 F.3d 1263 (10th Cir.1997) (same). Cf. Perez v. Wisconsin Dep't of Corrections, 182. F.3d 532, 538 (7th Cir.1999) (Easter-brook, J.) (“It is possible to imagine cases in which the harm is done and no further administrative action could supply any ‘remedy.’ ”). ' ' . In addition, the Fifth and Tenth Circuits have required exhaustion in cases involving excessive force, but without explicitly considering whether such claims properly fall within the § 1997e(a) requirement. See Wendell v. Asher, 162 F.3d 887, 890-91 (5th Cir.1998); Garrett v. Hawk, 127 F.3d 1263, 1264-66 (10th Cir.1997). . As Judge Noonan observes, the only other variant to this definition of \"conditions” that is relevant to the term's usage in this statute— \"something needing remedy” (as used in the sentence, \"Trains were late to New York because of conditions in New Jersey”) — suggests the same connotation. Webster's Third International Dictionary, supra, at 473; Booth, 206 F.3d at 301 (Noonan, J., concurring and dissenting). . Title 18, section 3626(g)(2) of the United States Code provides: (g) Definitions. — As used in this section— (2) the term \"civil action with respect to prison conditions” means any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or" }, { "docid": "3850089", "title": "", "text": "only monetary relief which is not available under the administrative procedures. A number of courts have determined that the so-called inadequacy exception does not survive the mandatory exhaustion requirement of the PLRA, see Wendell v. Asher, 162 F.3d 887, 890-91 (5th Cir.1998), while a number of courts have determined that it does, see Garrett v. Hawk, 127 F.3d 1263, 1266 (10th Cir.1997). The Second Circuit has yet to issue a definitive ruling on this issue. See Liner v. Goord, 196 F.3d 132, 135 (2d Cir.1999) (declining to resolve this “complex legal issue[ ]”); see also Nussle, 224 F.3d 95, (holding, as a matter of first impression, that excessive force claims are not encom passed within section 1997e(a)’s exhaustion requirement, but not ruling on whether the exhaustion requirement applies to claims for monetary damages alone); Tolliver v. Wilson, 99-CV-9555, 2000 WL 1154311, *3 (S.D.N.Y. August 14, 2000) (“the Second Circuit has not yet decided whether the PLRA requires a prisoner seeking monetary damages to exhaust ... ”, but holding that plaintiff not relieved from exhaustion requirement). Despite the existence of this conflict, it is immaterial here. Plaintiff requests in-junctive relief and a restraining order in addition to monetary damages. Even pri- or to the amendment to the PLRA, courts held that prisoners seeking injunctive and declaratory relief in addition to monetary damages must exhaust available administrative procedures even if those procedures do not provide for monetary damages. See McCarthy v. Madigan, 503 U.S. 140, 153 n. 5, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992); Arvie v. Stalder, 53 F.3d 702, 706 (5th Cir.1995); Irwin v. Hawk, 40 F.3d 347, 348-49 (11th Cir.), cert. denied, 516 U.S. 835, 116 S.Ct. 112, 133 L.Ed.2d 64 (1995); Young v. Quinlan, 960 F.2d 351, 356 n. 8 (3d Cir.1992); see also Newman v. Holder, 101 F.Supp.2d 103, 106 (E.D.N.Y.2000) (acknowledging split of authority, but adopting Seventh Circuit rule that “a prisoner cannot avoid section 1997e(a) just by limiting his demand in court to money”). Moreover, because plaintiff seeks more than merely monetary damages, DOCS could possibly have provided plaintiff with at least part of' the" }, { "docid": "4476265", "title": "", "text": "and “determine! ] that such administrative remedies are in substantial compliance with the minimum acceptable standards promulgated [by the Attorney General].” § 1997e(a)(2); Gartrell, 981 F.2d at 259. As a result of the PRLA amendments, the relevant portion of § 1997e now provides: (a) No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C.A. § 1997e(a) (West Supp.1998). The PLRA amendments thus resulted in three significant changes to the language of § 1997e. First, the exhaustion requirement no longer is restricted to § 1983 cases, but now applies to eases “brought ... under any other Federal law....” Id.; Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir.1997). Second, courts no longer possess discretion in deciding whether to apply the exhaustion requirement, as indicated by the replacement of the condition “if the court believes that such a requirement would be appropriate and in the interests of justice” with the mandate “[n]o action shall be brought.” Garrett, 127 F.3d at 1265. Third, courts no longer must assess the administrative remedy and “determine[ ] that such administrative remedies are in substantial compliance with the minimum acceptable standards promulgated [by the Attorney General],” as this provision has been eliminated by the PLRA. Here, Plaintiff asserts an excessive force claim under § 1983, alleging that Defendant Smith violated Plaintiffs Eighth Amendment right to be free from cruel and unusual punishment by hitting Plaintiff with a fan. Plaintiff asks the Court to remove Defendants from their jobs and award monetary damages to Plaintiff. Although Plaintiff filed a grievance under HCI’s grievance procedure, Plaintiff did not appeal the denial of his grievance. Plaintiff thus has failed to exhaust “such administrative remedies as are available,” and his case must be dismissed. § 1997e(1); Brown v. Toombs, 139 F.3d 1102, 1103 (6th Cir.1998) (per curiam) (“In light of the plain mandatory language of the statute regarding exhaustion of remedies, the legislative purpose underlying the plain" }, { "docid": "3850088", "title": "", "text": "Facility, 28 F.Supp.2d 884, 887-889 (S.D.N.Y.1998). In response to the instant motion, plaintiff utterly fails to present any evidence or even any allegation that he has exhausted his administrative remedies with respect to his Eighth Amendment claims. Indeed, nothing in the record supports any conclusion on this point other than that plaintiff never filed any grievance regarding these claims. It is clear, therefore, that plaintiff has failed to exhaust his remedies. Although he filed two inmate grievances in 1998, neither alleges anything other than that he was discriminated against with respect to his removal from the storehouse position because of his disability. As such, those grievances do not satisfy the exhaustion requirement with respect to plaintiffs Eighth Amendment claims. The fact that the administrative procedures at DOCS do not provide for monetary relief does not relieve plaintiff of his obligation to exhaust his administrative remedies in accordance with the PLRA. It is true that there is a split in the case law regarding whether a plaintiff must exhaust administrative remedies where the plaintiff has requested only monetary relief which is not available under the administrative procedures. A number of courts have determined that the so-called inadequacy exception does not survive the mandatory exhaustion requirement of the PLRA, see Wendell v. Asher, 162 F.3d 887, 890-91 (5th Cir.1998), while a number of courts have determined that it does, see Garrett v. Hawk, 127 F.3d 1263, 1266 (10th Cir.1997). The Second Circuit has yet to issue a definitive ruling on this issue. See Liner v. Goord, 196 F.3d 132, 135 (2d Cir.1999) (declining to resolve this “complex legal issue[ ]”); see also Nussle, 224 F.3d 95, (holding, as a matter of first impression, that excessive force claims are not encom passed within section 1997e(a)’s exhaustion requirement, but not ruling on whether the exhaustion requirement applies to claims for monetary damages alone); Tolliver v. Wilson, 99-CV-9555, 2000 WL 1154311, *3 (S.D.N.Y. August 14, 2000) (“the Second Circuit has not yet decided whether the PLRA requires a prisoner seeking monetary damages to exhaust ... ”, but holding that plaintiff not relieved from exhaustion requirement)." }, { "docid": "17356046", "title": "", "text": "in section 1997e(a), dealing with administrative exhaustion, as not applying to former prisoners no longer incarcerated); Doe v. Washington County, 150 F.3d 920, 924 (8th Cir.1998) (interpreting “prisoner” as used in section 1997e(d), dealing with attorneys’ fees, as not applying to former prisoners). B. The district court dismissed without prejudice two categories of plaintiffs because they failed to exhaust their administrative remedies before bringing suit and thus failed to satisfy the exhaustion requirement of section 1997e(a). That section provides: “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Plaintiffs make a valiant argument that they should not be required to exhaust their administrative remedies before being allowed to proceed in court because (1) the GDC’s treatment of similar claims demonstrates that it would be futile for plaintiffs to pursue administrative relief, and (2) no administrative relief is “available” to plaintiffs because the GDC Inmate Grievance Procedures do not provide for the monetary damages award plaintiffs seek. At least with regard to the issue of what remedies are “available” under section 1997e(a), some courts have agreed with the plaintiffs. See Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir.1998); Lunsford v. Jumao-As, 155 F.3d 1178, 1179 (9th Cir.1998); Garrett v. Hawk, 127 F.3d 1263, 1267 (10th Cir.1997). But we think the disposition of this issue is controlled by our recent decision in Alexander v. Hawk, 159 F.3d 1321 (11th Cir.1998). In Alexander, we held that “the judicially recognized futility and inadequacy exceptions do not survive the new mandatory exhaustion requirement of the PLRA.... Since exhaustion is now a precondition to suit, the courts cannot simply waive those requirements where they determine they are futile or inadequate.” Id. at 1325-26. Plaintiffs’ argument in effect asks us either to reconsider Alexander or to limit the case to its facts. We are unable to reconsider Alexander because only the court sitting en banc has the authority to overrule circuit precedent. We" }, { "docid": "14915020", "title": "", "text": "Bivens claim seeking both injunctive and monetary relief, like plaintiff here, exhaustion through the Bureau of Prison’s grievance procedure is required for at least those claims seeking nonmonetary relief. Rumbles v. Hill, 182 F.3d 1064 (9th Cir.1999) (extending reasoning in prior Bivens action to § 1983 suit by state prisoner); Alexander v. Hawk, 159 F.3d 1321, 1325 (11th Cir.1998); Whitley v. Hunt, 158 F.3d 882, 886 (1998); Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir.1997). There is a split in the circuits regarding whether a federal prisoner seeking only monetary damages must exhaust administrative remedies before filing a Bivens action in federal court. Three circuits have held in Bivens-type actions by federal prisoners that exhaustion in money damages cases is unnecessary because federal prison regulations do not allow for administrative review at all if the federal prisoner seeks damages. Whitley v. Hunt, 158 F.3d 882 (5th Cir.1998); Lunsford v. Jumao-As, 155 F.3d 1178 (9th Cir.1998); Garrett v. Hawk, 127 F.3d 1263 (10th Cir.1997). In contrast, the Eleventh Circuit has held that even where the federal prison system denies review in such money damages cases, the federal prisoner must still attempt to have his complaint reviewed. Alexander v. Hawk, 159 F.3d 1321, 1325 (11th Cir.1998); see also Perez v. Wisconsin Dep’t of Corrections, 182 F.3d 532, 535 (7th Cir.1999) (state prisoner seeking only monetary damages, which state system does not provide, must exhaust administrative remedies). Although it may make sense to excuse exhaustion of the prisoner’s complaint where the prison system has a flat rule declining jurisdiction over such cases, it does not make sense to excuse the failure to exhaust when the prison system will hear the case and attempt to correct legitimate complaints, even though it will not pay damages. Wyatt v. Leonard, 193 F.3d 876, 878-79 (6th Cir.1999). Here, because plaintiff seeks injunctive and declaratory relief, as well as monetary damages, he may be successful in having the Bureau of Prisons at least review its policies and procedures concerning disabled persons at their facilities. If so, presenting his claims to the Bureau of Prisons first would not" }, { "docid": "23433421", "title": "", "text": "shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C.A. § 1997e (Supp.1998). Having expanded the exhaustion requirement to include actions brought under “any other Federal law,” Congress now plainly requires federal prisoners to exhaust available administrative remedies prior to bringing Bivens claims. See, e.g., Garrett, 127 F.3d at 1265-66 & n. 2; Alexander S. v. Boyd, 113 F.3d 1373, 1380 (4th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 880, 139 L.Ed.2d 869 (1998). Therefore, that part of McCarthy which relied upon Congress’ failure to expressly require exhaustion by federal prisoners no longer provides a viable justification for excusing a federal prisoner’s failure to pursue administrative remedies. The question remains, however, whether Congress intended to require a federal prisoner who is seeking exclusively monetary damages to pursue administrative remedies when, and if, there are no administrative remedies that would permit recovery of monetary damages. This Circuit has not addressed that question. In Garrett v. Hawk, 127 F.3d 1263 (10th Cir.1997), the Tenth Circuit held that § 1997e does not require a federal prisoner seeking exclusively monetary relief to pursue administrative remedies prior to filing a Bivens claim against prison officials. The Court reasoned that McCarthy’s holding that Congress did not intend to require exhaustion of unavailable remedies survived in the plain language of the amended statute. 127 F.3d at 1266; see also 42 U.S.C.A. § 1997e (Supp.1998) (“No action shall be brought ... until such administrative remedies as are available are exhausted.”) (emphasis added). Noting that Congress had not seen fit to enact administrative remedies that would, or even could, provide monetary relief to prisoners pressing Bivens claims, the Court held that § 1997e could not be construed to require the exhaustion of nonexistent remedies. Garrett, 127 F.3d at 1267; see also McCarthy, 112 S.Ct. at 1092 (“Congress, of course, is free to design or require an appropriate administrative procedure for a prisoner to exhaust his claim" }, { "docid": "22768548", "title": "", "text": "attempt to correct legitimate complaints, even though it will not pay damages. Plaintiff then argues that the language in the statute, “no action shall be brought with respect to prison conditions,” does not apply to assaults or excessive force claims on prisoners by prison officers. Neither the Supreme Court nor any circuit court has directly addressed this issue, although we note that at least three circuit courts, including our own, have held, without discussing the precise issue raised by plaintiff herein, that claims of excessive force must be exhausted. Wendell v. Asher, 162 F.3d 887 (5th Cir.1998); Brown v. Toombs, 139 F.3d 1102 (6th Cir.), cert. denied, — U.S. -, 119 S.Ct. 88, 142 L.Ed.2d 69 (1998); Garrett v. Hawk, 127 F.3d 1263 (10th Cir.1997); see also White v. McGinnis, 131 F.3d 593 (6th Cir.1997) (exhaustion required where the prisoner brought a claim of retaliation). The district courts that have addressed the issue are divided on whether exhaustion is required. Compare Johnson v. Garraghty, 57 F.Supp.2d 321, 325-26 (E.D.Va.1999); Beeson v. Fishkill Correctional Facility, 28 F.Supp.2d 884, 888-92 (S.D.N.Y.1998); Moore v. Smith, 18 F.Supp.2d 1360, 1363 (N.D.Ga.1998); Morgan v. Arizona Dep’t of Corrections, 976 F.Supp. 892, 895-96 (D.Ariz.1997) (exhaustion required) with Baskerville v. Goord, No. 97 CIV. 6413, 1998 WL 778396 at *3 (S.D.N.Y. Nov. 5, 1998); White v. Fauver, 19 F.Supp.2d 305, 313-15 (D.N.J.1998) (exhaustion not required). The phrase “action ... with respect to prison conditions” is not defined in § 1997e. Because the question is one of statutory construction, we must first look to the plain language of the statute. Defendants argue that the term “prison conditions” as used in 18 U.S.C. § 3626(g)(2), which was amended as part of the same legislation as § 1997e, does include claims such as excessive force because it expressly includes “effects of actions by government officials on the lives of confined persons” as well as “conditions of confinement” in defining “prison conditions.” Defendants argue that Congress intended those additional words to include an act such as excessive force by a prison guard. It is generally recognized that when Congress uses the" }, { "docid": "14915019", "title": "", "text": "1081, 117 L.Ed.2d 291 (1992), is no longer controlling in light of the exhaustion requirement in § 1997e(a) as amended. McCarthy held that federal prisoners bringing a Bivens action that sought only money damages were not required to exhaust the Bureau of Prisons grievance procedure. McCarthy withheld ruling on whether exhaustion would be required where a federal prisoner sought injunctive or other relief, in addition to monetary relief, like the plaintiff herein. Finally, McCarthy recognized that when Congress specifically mandates exhaustion, it is required and the courts may not excuse the requirement. With the passage of the Reform Act, Congress has now specifically mandated the exhaustion of remedies through the prison grievance system. Even before passage of the Reform Act, this Court held that federal prisoners seeking injunctive relief must exhaust administrative remedies before coming to federal court, even if the prisoner also asserts a claim for monetary damages. Davis v. Keohane, 835 F.2d 1147, 1148 (6th Cir.1987). Every circuit court that has addressed the issue has held that if a federal prisoner asserts a Bivens claim seeking both injunctive and monetary relief, like plaintiff here, exhaustion through the Bureau of Prison’s grievance procedure is required for at least those claims seeking nonmonetary relief. Rumbles v. Hill, 182 F.3d 1064 (9th Cir.1999) (extending reasoning in prior Bivens action to § 1983 suit by state prisoner); Alexander v. Hawk, 159 F.3d 1321, 1325 (11th Cir.1998); Whitley v. Hunt, 158 F.3d 882, 886 (1998); Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir.1997). There is a split in the circuits regarding whether a federal prisoner seeking only monetary damages must exhaust administrative remedies before filing a Bivens action in federal court. Three circuits have held in Bivens-type actions by federal prisoners that exhaustion in money damages cases is unnecessary because federal prison regulations do not allow for administrative review at all if the federal prisoner seeks damages. Whitley v. Hunt, 158 F.3d 882 (5th Cir.1998); Lunsford v. Jumao-As, 155 F.3d 1178 (9th Cir.1998); Garrett v. Hawk, 127 F.3d 1263 (10th Cir.1997). In contrast, the Eleventh Circuit has held that even where the" }, { "docid": "22768547", "title": "", "text": "him. The nurse did nothing to stop the assault or call for help. Plaintiff claims that he suffered a separated shoulder from the incident. Plaintiff first contends that because he seeks solely monetary damages for constitutional deprivations and money damages are not available through the Ohio prison grievance process, he should not be required to exhaust administrative remedies. We have previously held that so long as the prison system has an administrative process that will review a prisoner’s complaint even when the prisoner seeks monetary damages, the prisoner must exhaust his prison remedies. Wyatt v. Leonard, 193 F.3d 876 (6th Cir.1999) (state prisoner seeking monetary damages must exhaust); Lavista v. Beeler, 195 F.3d 254, 256-57 (6th Cir.1999) (federal inmate seeking monetary, injunctive and declaratory relief must exhaust). As we explained, although it may make sense to excuse exhaustion of the prisoner’s complaint where the prison system has a flat rule declining jurisdiction over such cases, it does not make sense to excuse the failure to exhaust when the prison system will hear the ease and attempt to correct legitimate complaints, even though it will not pay damages. Plaintiff then argues that the language in the statute, “no action shall be brought with respect to prison conditions,” does not apply to assaults or excessive force claims on prisoners by prison officers. Neither the Supreme Court nor any circuit court has directly addressed this issue, although we note that at least three circuit courts, including our own, have held, without discussing the precise issue raised by plaintiff herein, that claims of excessive force must be exhausted. Wendell v. Asher, 162 F.3d 887 (5th Cir.1998); Brown v. Toombs, 139 F.3d 1102 (6th Cir.), cert. denied, — U.S. -, 119 S.Ct. 88, 142 L.Ed.2d 69 (1998); Garrett v. Hawk, 127 F.3d 1263 (10th Cir.1997); see also White v. McGinnis, 131 F.3d 593 (6th Cir.1997) (exhaustion required where the prisoner brought a claim of retaliation). The district courts that have addressed the issue are divided on whether exhaustion is required. Compare Johnson v. Garraghty, 57 F.Supp.2d 321, 325-26 (E.D.Va.1999); Beeson v. Fishkill Correctional Facility, 28" }, { "docid": "22296414", "title": "", "text": "have submitted his appeal no later than 13 April. . We have said that an administrative remedy is not \"available” if it is unknown and unknowable to the inmate. Goebert v. Lee County, 510 F.3d 1312, 1323 (11th Cir.2007). Other courts have said that administrative remedies are not available to an inmate if prison officials do not respond to grievances or if they prevent the filing of grievances. See, e.g., Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir.2002) (\"[T]he failure to respond to a grievance within the time limits contained in the grievance policy renders an administrative remedy unavailable”); Miller v. Norris, 247 F.3d 736, 740 (8th Cir.2001) (\"We believe that a remedy that prison officials prevent a prisoner from 'utilizing]’ is not an ‘available’ remedy under § 1997e(a)”). We need not decide whether Priester had administrative remedies available to him while he was incarcerated at Rogers because, given the district court's findings, Priester did have remedies available to him at GSP. . Adopting the magistrate judge's finding that Priester’s claim about not having access to grievance forms was not credible, the district court declared \"that, irrespective of whether the issue is reached under Rule 12(b)(1), 12(b)(6), or 56, exhaustion constitutes a preliminary issue for which no jury trial right exists, and therefore judges can and should make credibility determinations on exhaustion-excusal issues.” . A district court judge may make factual findings when resolving purely jurisdictional issues. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981). In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit that were rendered prior to 1 October 1981. . Although the Supreme Court recently announced in Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), that failure to exhaust under the PLRA was an affirmative defense, it did so in resolving the question whether the PLRA required plaintiffs, instead of defendants, to plead specifically that all administrative remedies had been exhausted. See id. at 921 (“We conclude that failure to exhaust is an" }, { "docid": "17356047", "title": "", "text": "GDC Inmate Grievance Procedures do not provide for the monetary damages award plaintiffs seek. At least with regard to the issue of what remedies are “available” under section 1997e(a), some courts have agreed with the plaintiffs. See Whitley v. Hunt, 158 F.3d 882, 887 (5th Cir.1998); Lunsford v. Jumao-As, 155 F.3d 1178, 1179 (9th Cir.1998); Garrett v. Hawk, 127 F.3d 1263, 1267 (10th Cir.1997). But we think the disposition of this issue is controlled by our recent decision in Alexander v. Hawk, 159 F.3d 1321 (11th Cir.1998). In Alexander, we held that “the judicially recognized futility and inadequacy exceptions do not survive the new mandatory exhaustion requirement of the PLRA.... Since exhaustion is now a precondition to suit, the courts cannot simply waive those requirements where they determine they are futile or inadequate.” Id. at 1325-26. Plaintiffs’ argument in effect asks us either to reconsider Alexander or to limit the case to its facts. We are unable to reconsider Alexander because only the court sitting en banc has the authority to overrule circuit precedent. We decline to limit the case to its facts because we find the general principles of Alexander persuasive. For the reasons stated therein, we reaffirm that section 1997e(a) imposes a mandatory requirement on prisoners seeking judicial relief to exhaust their administrative remedies first. Further, we reaffirm that the term “available” as used in section 1997e(a) does not mean that prison inmates must only exhaust their administrative remedies if the relief they seek is “available” within the administrative apparatus; instead, the term means that a prisoner must exhaust all administrative remedies that are available before filing suit, regardless of their adequacy. See id.; see also, Perez v. Wisconsin Dep’t of Corrections, 182 F.3d 532, 536-37 (7th Cir.1999) (concurring with Alexander on the issue of “available” remedies). C. Even though plaintiff James Wade was still in prison and had exhausted all of his administrative remedies, the district court also dismissed with prejudice Wade’s claims to compensatory and punitive damages because his allegations of physical injury were not serious enough to satisfy the physical injury requirement of section 1997e(e)." } ]

[ { "docid": "17834933", "title": "", "text": "Circuit has noted, a defendant cannot “escape criminal responsibility on the grounds that he did not join the conspiracy until well after its inception [citations omitted]; or because he plays only a minor role in the total scheme.” United States v. Alvarez, 625 F.2d 1196, 1198 (5th Cir.1980) (en banc). 2) Importation and conspiracy to import. The appellants contend that even if the evidence supports their convictions for conspiracy as to possession with intent to distribute, the evidence was insufficient with respect to the importation counts. The defendants argue that their participation in the conspiracy did not commence until after the importation was completed, that they were involved, if at all, in a separate and distinct conspiracy to possess and distribute marijuana, and that their complicity in the offloading operation did not furnish evidence that they knew of or participated in the separate importation conspiracy. Importation is a “ ‘continuous crime’ that is not complete until the controlled substance reaches its final destination point.” United States v. Gray, 626 F.2d 494, 498 (5th Cir.1980); United States v. Reynolds, 511 F.2d 603, 607 (5th Cir.1975); United States v. Guajardo, 508 F.2d 1093, 1095 (5th Cir.1975). The importation was thus still in progress at the time the marijuana was offloaded. By offloading the marijuana, then, appellants furthered the conspiratorial objective of importing and possessing with intent to distribute the marijuana. In short, there were not two separate and distinct conspiracies, but one, whose purpose encompassed bringing a controlled substance into the United States and distributing it there for profit: The plan necessarily required the assistance of many persons performing varied functions; yet there was still only one overall agreement between the parties to perform functions necessary to and in furtherance of the illegal common purpose. This makes out one conspiracy, [citations omitted]. The plan does not become several plans simply because some members were cast in more vital roles than others or because certain members performed only a single function. United States v. Michel, 588 F.2d 986, 995 (5th Cir.1979). From the evidence adduced at trial, there was more than a sufficient" } ]

[ { "docid": "23246773", "title": "", "text": "Cir.1983) (numerous trips and changing personnel irrelevant when constant purpose to import drugs into the United States for profit); United States v. Bridwell, 583 F.2d 1135, 1141-42 (10th Cir.1978) (seven different drug transactions over substantial period of time show continuous course of conduct representing a single conspiracy to sell drugs illegally); United States v. Champion, 813 F.2d 1154, 1166-67 (11th Cir.1987) (eighteen drug transactions over three-year period with one common participant considered single conspiracy as purpose and basic means of implementation consistent throughout). Nevertheless, Record denies the existence of significant overlap in personnel, arguing that he did not participate in the “first conspiracy.” Palmero testified, however, that prior to these first three marijuana transactions, Record provided him and another individual with names of others in order to “put together a smuggling network.” Rec. vol. V at 323. One of these individuals was a pilot named Dick Pinder (Pinder). Id. at 324. Barbara Fore, a former girlfriend of Pinder, testified that around 1979 or 1980, Pinder told her that he was involved in the drug business with Record and Palmero, that he traveled often to Jamaica, and that Record, Palmero, and himself had lost a plane in Jamaica in the course of their drug dealings. Id. at 480-87. Finally, Palmero indicated that Record received and sold the marijuana imported in the second of these first three deals. Id. at 334-35. The heart of the conspiracy charged in the indictment consists of the transactions that Record calls the “second conspiracy.” From approximately mid-1982 until late 1983 or early 1984, the key players were all heavily involved. Olarte provided marijuana and cocaine in Colombia, e.g., rec. vol. IV at 97, and Record provided transportation and security for the intermediate stop in the Bahamas, as well as transportation to Florida and distribution once there, id. at 55-56. Palmero and Jamieson assisted in offloading the drugs from planes in the Bahamas, and Jamieson transported the drugs by boat from the Bahamas to Florida. E.g., rec. vol. V at 347-50. Sometime during this period, Palmero began piloting the leg from Colombia to the Bahamas and began" }, { "docid": "18747478", "title": "", "text": "prosecution changed a misdemeanor charge to a felony charge after a convicted defendant exercised his right to obtain a trial de novo following his misdemeanor conviction. Gunn has not demonstrated any evidence of vindictiveness on the part of the government, nor any circumstance from which we should presume vindictive motivation. In sum, we find that Gunn has failed to show his indictment in 166 was the result of prosecutorial vindictiveness. Challenges to Sufficiency of the Evidence MacDougall We next turn to the appellants’ assertions that the evidence is insufficient to support several of their convictions. MacDougall challenges his convictions on the conspiracy to import and importation of 30.000 pounds of hashish aboard the vessel “Second Life” in June 1980, on the grounds that the evidence showed that his sole duty in that venture was to serve as an offload-er after the act of importation was complete. He also challenges the sufficiency of the evidence regarding his conviction on Count Eight — possession with intent to distribute relating to a cargo of approximately 9.000 pounds of marijuana unloaded at Calibogue Cay, Hilton Head in 1979. The issue in MacDougall’s challenge to his convictions of conspiracy to import and importation of hashish is not factual; the government does not dispute MacDougall’s self-characterization as an offloader. Rather, the question is a legal one: at what point did importation cease? The essence of MacDougall’s argument is that the importation of hashish was complete once the contraband had crossed the United States border, which occurred in this case when it entered the territorial waters of the United States. We disagree. MacDougall’s argument would allow the imaginary boundary line not only to establish the requisite international element in importation, but also divide artificially and inaccurately into two separate components the process by which drugs are imported into the United States. Importation is a continuous crime not complete until the controlled substances reach their final destination and the cargo is offloaded. United States v. Corbin, 734 F.2d 643, 652 (11th Cir.1984) (importation still in progress at time marijuana was offloaded; offloading furthered the conspiratorial objectives of importation" }, { "docid": "13160982", "title": "", "text": "on the scene. On September 4, 1985, local narcotics agents, acting on information provided by Albertorio and Serra, arrested Leal. On September 10th, Santiago was also arrested. II. Leal raises two arguments in this appeal. Because both of Leal’s claims relate to his conviction for importation of marijuana, we have set out the relevant text of 21 U.S.C. § 952 (1982) below. Leal’s first claim is that the evidence adduced by the government at trial was insufficient to sustain his conviction for importation of a controlled substance in violation of § 952(a). The essence of his argument is that he did not knowingly import the marijuana found in the shipping container into the United States and is thus implicated only with respect to the activities that transpired after the marijuana had been off-loaded. In support of his claim, Leal points to the fact that there was no evidence “that [he] had been to Jamaica where the importation originated ... [or that] he participated in the clandestine placing of the marijuana in the shipping container in Jamaica, or elsewhere, or arranged that activity.” Appellant’s Brief at 8. Leal also stresses that seven days had elapsed between the date on which the contraband was off-loaded and the date on which his codefendants were arrested attempting to remove the contraband from the pier. While the precise temporal parameters of importation have not yet been addressed by this Court, other courts of appeals have analyzed this issue. It is clear that the crime of importation does not end the instant the controlled substance enters the United States. See United States v. Martinez, 763 F.2d 1297, 1304 (11th Cir. 1985). Rather, importation is a “ ‘continuous crime’ that is not complete until the controlled substance reaches its final destination point.” United States v. Corbin, 734 F.2d 643, 652 (11th Cir.1984) (citing United States v. Jackson, 482 F.2d 1167 (10th Cir.1973), cert. denied, 414 U.S. 1159, 94 S.Ct. 918, 39 L.Ed.2d 111 (1974)); Martinez, 763 F.2d at 1304; United States v. Godwin, 546 F.2d 145 (5th Cir.1977). In isolating what constitutes the final destination point, the" }, { "docid": "3546074", "title": "", "text": "DiGiovanni and, if the jury found by independent evidence that the appellants were members of the conspiracy, against the appellants also. The other claims of error which the appellants press are so devoid of merit as to require little comment. Since there was ample evidence to make a case for the jury, the appellants were not entitled to a peremptory instruction of acquittal in the event that the jury should disbelieve Bruno’s testimony as to DiGiovanni. It was for the jury to apply the law, as to which they had been correctly instructed, to the facts which they should find proved. Nor is a trivial misstatement of fact in the charge ground for the reversal of a five days’ trial fairly conducted, especially when no objection was raised until appeal. And, lastly, appellants’ contention that the verdict was inconsistent with the judge’s charge as to unlawful importation also is wholly without substance. Unlawful importation had been accomplished when the heroin, in Sibille’s custody, had been brought within the territorial waters of the United States. Palmero v. United States, 1 Cir., 112 F.2d 922; Pon Wing Quong v. United States, 9 Cir., 111 F.2d 751, 756. The fact of importation was not affected by the fact that the heroin was removed from the ship by a narcotic agent rather than a co-conspirator. Palmero v. United States, supra. Neither the charge nor the verdict was inconsistent with these facts and rules of law. And it may be added that proof of the substantive crime of unlawful importation was not essential to prove the crime of conspiracy as charged. Affirmed." }, { "docid": "3522196", "title": "", "text": "on the afternoon of November 5. After learning that seamen from that ship were using the Port Ship Service, the agents stationed themselves outside the docking area. Appellant was the only Chinese among the group of seamen that arrived aboard the Port Ship Service launch at the time. As he walked from the docking area to the bus stop the agents observed that he was carrying a package under his coat. The search took place approximately twenty-five yards from the docking area and within a matter of minutes after appellant disembarked from the launch. These circumstances combined with the informant’s tip established a basis for suspecting that appellant was bringing ashore merchandise which could not legally be imported into the United States. They also demonstrate that the requisite reasonableness existed. The second assignment of error, that the trial court erred in sustaining the government’s objections to appellant’s questions seeking the identity of the informant, is likewise without merit. Appellant contends that he was entitled to examine the informant on the issue of entrapment. It was appellant’s position that a person whom he believed to be the informant had induced him to bring the opium ashore. This, however, even if true, would not establish the defense of entrapment as urged. Appellant is charged with fraudulently and knowingly importing and bringing narcotic drugs into the United States. That offense occurred when appellant, aboard the M/V Enotis, crossed into United States waters with the opium in his possession. Palmero v. United States, 1 Cir., 1940, 112 F.2d 922; United States v. Morello, 2 Cir., 1957, 250 F.2d 631; United States v. Lee Foo Yung, S.D.N.Y., 1942, 46 F.Supp. 147. Appellant does not contend that the informant induced his bringing the narcotics to the United States, but only that the informant persuaded him to bring the opium ashore. He met the supposed informant only the day before. Appellant’s reliance on Portomene v. United States, 5 Cir., 1955, 221 F.2d 582, is misplaced. The narcotics conviction there was reversed because the government had been permitted to withhold the identity of the informant who purchased opium" }, { "docid": "1158921", "title": "", "text": "the jurisdiction of the United States.” 21 U.S.C. § 802(27) (Supp. III 1985) . The airport where the search and seizure occurred was clearly within the jurisdiction of the United States. No statute has been called to our attention exempting from that jurisdiction such places as transit lounges or the interiors of transiting aircraft. It is established that a controlled substance is imported into the United States if brought within the nation’s territorial boundaries. See, e.g., Palmero v. United States, 112 F.2d 922 (1st Cir.1940) (the words “import or bring” of the Narcotic Drugs Import and Export Act prohibit bringing the article within the territorial boundaries of the United States — within the waters or upon the lands — and does not require actual landing of the goods (quoting United States v. Caminata, 194 F. 903 (D.C.E.D. Pa.1912)); United States v. Catano, 553 F.2d 497 (5th Cir.) (a suitcase containing cocaine was found to have been “imported” into the United States, under section 952(a), when removed from an international flight and placed on a carousel at the international airport in Miami, Florida, even though it had not yet passed through customs), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 140 (1977). Appellant’s third conviction was for violation of 21 U.S.C. § 841(a)(1), requiring proof of possession with intent to distribute. Although appellant did not, apparently, intend to distribute the narcotics in the United States, the place of intended distribution is not important so long as such intent is established together with the fact of possession within the United States. United States v. Gomez-Tostado, 597 F.2d 170 (9th Cir.1979). Accord United States v. Montoya, 782 F.2d 1554, 1555 (11th Cir. 1986) . The Second Circuit explored the issue before us in detail in United States v. Muench, 694 F.2d 28 (2d Cir.1982), cert. denied, 461 U.S. 908, 103 S.Ct. 1881, 76 L.Ed.2d 811 (1983). In that case DEA agents learned of a scheme through which individuals flying from Colombia to West Germany would smuggle drugs into the latter. The flight would stop in New York where two persons involved" }, { "docid": "1570733", "title": "", "text": "that § 841(a)(1) does not apply to a drug dealer’s possession of narcotics within United States territory but outside its customs boundaries. We decline this invitation for several reasons. As an initial matter, both Pentapati and Madalone, in relevant part, interpreted 21 U.S.C. § 952(a), proscribing importation, and not § 841(a)(1), proscribing possession with intent to distribute. However, as we accept the appellants’ implicit assumption that cases decided under § 952(a) are to some degree instructive in prosecutions under § 841(a)(1), we must also take note of cases such as United States v. Catano, 553 F.2d 497, 500 (5th Cir.), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 40 (1977), and Palmero v. United States, 112 F.2d 922, 924 (1st Cir.1940). These cases hold that the crime of importation is complete when contraband is brought into United States territory, regardless of whether an attempt is made to bring the contraband through customs. They suggest that the crime of possession likewise is complete when possession occurs upon United States territory, and that an attempt to pass customs is immaterial. See also 21 U.S.C. § 951(a)(1) (1976). Second, and more important, an “in-transit” exception to § 841(a)(1) would be inconsistent with the Congressional intent underlying both the statute and the United States drug control laws generally. As Judge Neaher noted in his ruling upon the motion to dismiss the indictment, the United States has by treaty obligated itself to cooperate with other nations in the suppression of the international drug trade. See 514 F.Supp. at 288. As a party to the Single Convention on Narcotic Drugs, March 30, 1961,18 U.S.T. 1407, T.I.A.S. No. 6298 (ratified by U.S. 1967), the United States is obligated to adopt measures for the control of persons engaged in the international trade, manufacture and distribution of specified drugs, including cocaine. Similar obligations are imposed by the Convention on Psychotropic Substances, T.I. A.S. No. 9725, signed at Vienna, Austria on February 21, 1971 and entered into force for the United States on July 15,1980. The Congress has expressly declared that the drug laws are in part intended" }, { "docid": "18747483", "title": "", "text": "could find MacDougall guilty beyond a reasonable doubt. Strickland’s testimony placing MacDougall at the off-load site, we believe, is sufficient to meet this standard and provided a basis for a jury to conclude beyond a reasonable doubt that MacDougall participated in the offense charged. Sanders Sanders attacks his convictions on Counts One and Twenty-three, conspiracy to import and importation, on the same grounds as MacDougall’s attack on his importation convictions, i.e., as an off-loader, he could not be convicted of conspiracy to import and of a substantive importation count. We affirm these convictions for the same reasons as we affirmed MacDougall’s convictions on Counts One and Thirteen. Gunn Gunn challenges his conviction on conspiracy to distribute marijuana and hashish on the grounds that the evidence that he was a crew member on sailing vessels importing large quantities of marijuana and hashish is insufficient to prove his guilt in the distribution conspiracy. There is no question of his culpability on the charge of conspiracy to import. The issue is whether Gunn possessed the requisite awareness of the distribution conspiracy and evidenced an intent to join it. The presence of large quantities of marijuana is clearly sufficient to establish the existence of the intent to distribute. United States v. Manbeck, 744 F.2d 360, 390 (4th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1197, 84 L.Ed.2d 342 (1985). A multton quantity of drugs is not for personal use. Proof of the existence of a conspiracy to distribute, however, does not prove that an individual involved in the importation conspiracy is necessarily involved in the conspiracy to distribute. Id. at 389-90. See also United States v. Watkins, 662 F.2d 1090, 1097 (4th Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1613, 71 L.Ed.2d 849 (1982); United States v. Laughman, 618 F.2d 1067, 1075 (4th Cir.) (simply proving the existence of a conspiracy cannot sustain a verdict against an individual defendant; proof of that defendant’s knowledge of the conspiracy’s purpose and some action indicating participation required), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980). The issue here is whether the" }, { "docid": "3522197", "title": "", "text": "appellant’s position that a person whom he believed to be the informant had induced him to bring the opium ashore. This, however, even if true, would not establish the defense of entrapment as urged. Appellant is charged with fraudulently and knowingly importing and bringing narcotic drugs into the United States. That offense occurred when appellant, aboard the M/V Enotis, crossed into United States waters with the opium in his possession. Palmero v. United States, 1 Cir., 1940, 112 F.2d 922; United States v. Morello, 2 Cir., 1957, 250 F.2d 631; United States v. Lee Foo Yung, S.D.N.Y., 1942, 46 F.Supp. 147. Appellant does not contend that the informant induced his bringing the narcotics to the United States, but only that the informant persuaded him to bring the opium ashore. He met the supposed informant only the day before. Appellant’s reliance on Portomene v. United States, 5 Cir., 1955, 221 F.2d 582, is misplaced. The narcotics conviction there was reversed because the government had been permitted to withhold the identity of the informant who purchased opium from the defendant. That sale constituted the crime for which Portomene was convicted. The informant did more than inform, he was an active participant in the crime. Under those circumstances the court concluded that the informant’s identity was material to the defense. The requirement of materiality of the informer to a defense asserted is also the teaching of Roviaro v. United States, 1957, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. Here, however, there was no sale. The informant was not a participant in the crime for which appellant was convicted. Indeed, under his own allegations, appellant had committed the offense of importing opium into the United States before he first met the informant. The identity of the informer was not material to the defense. The district court did not err in this ruling. Cf. McCray v. Illinois, 1967, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62; Unit ed States v. Acosta, 5 Cir., 1969, 411 F.2d 627. The last assignment of error to be considered involves the admission into evidence of statements" }, { "docid": "22587714", "title": "", "text": "continue to the smuggling attempt’s destination point in Colorado. Admittedly a crime was committed the moment the heroin package entered the United States, but discovery of the crime in California did not exhaust it. The illicit scheme originated in Thailand and from there it extended to Lowry Air Force Base, Colorado. During the illicit venture the heroin was discovered in California but certainly the crime was not completed there. It was a continuous crime which received no finality until the package arrived at Lowry Air Force Base. Id. (citation omitted). In Godwin, the court expressly rejected the holding in Lember and adopted the reasoning of the Tenth Circuit in Jackson. 546 F.2d at 146-47. The need for consistency in the interpretation of importation offenses — whether it involves the importation of illegal aliens or illegal contraband — did not go unnoticed by the Second Circuit. The “immediate destination” theory adopted by a three-judge panel of our court in United States v. Ramirez-Martinez, 273 F.3d 903, 912 (9th Cir.2001), originated in United States v. Aslam, 936 F.2d 751, 755 (2d Cir.1991). Aslam, a Pakistani citizen, met two illegal aliens just south of the Canadian border. Id. at 753. The evidence showed that a guide had driven the aliens to the Canadian side of the border, accompanied them across the border, and then walked back to the Canadian side. Id. Aslam waited for the aliens at a prearranged location south of the border to “complete their entry into the United States.” Id. In concluding that Aslam’s conduct violated the “bringing to” prong of the statute, the Second Circuit stated that section 1324(a)(2) punishes those who participate in the process of bringing illegal aliens into the United States, and ... the offense does not end at the instant the alien sets foot across the border. The illegal importation of aliens, like the illegal importation of drugs, see United States v. Leal, 831 F.2d 7, 9(1st Cir.1987), United States v. MacDougall, 790 F.2d 1135, 1150-51, 1153 (4th Cir.1986), continues at least until the alien reaches his immediate destination in this country. Id. at 755" }, { "docid": "18747446", "title": "", "text": "Carolina. It also imported two loads of marijuana totaling approximately 16,000 pounds at Hilton Head in October 1980. In early 1980, the Riley-Harvey organization began planning the importation of large quantities of hashish in a joint venture with the Pernell-Toombs organization. Riley-Harvey arranged for the purchase of the hashish; Pernell-Toombs its distribution. The Rhoad-Foy organization also paid $700,000 in return for a share of the hashish. As part of this operation, Michael Harvey travelled to Lebanon with money to pay for the hashish. Riley and Leon Harvey hired Campbell to captain a vessel named the “Second Life.” Campbell, whom Pernell testified worked for Riley and Leon Harvey, recruited Gunn as a crew member. In June 1980, the 30,000 pound hashish cargo was unloaded at Hilton Head Island. Both MacDougall and Michael Harvey participated in the offloading. In late 1980, the organization imported a 25,000 pound quantity of hashish at Hilton Head aboard the vessel, “LaCativa.” Around this time, Riley, Leon Harvey, Pernell and Toombs began planning a joint operation to import up to 100,000 tons of hashish from Lebanon. The operation subsequently involved several vessels, including one captained by Campbell with Gunn as a crew member. The vessels were offloaded at various points along the east coast. One of the vessels, the “Anonymous of RORC,” did not reach the east coast until October or November 1981. Its 9,000 pound cargo of hashish was offloaded onto two other boats which subsequently offloaded the hashish at a farm on Edisto Island, South Carolina, belonging to the family of appellant Sanders. Sanders had provided security for the operation. This last venture resulted in the arrest of many of the participants and the effective termination of the large scale smuggling activities of the Riley-Harvey organization. Appellants’ Double Jeopardy Claims Against the background of overlapping acts and personnel, we first consider the contention of MacDougall, Sanders, Gunn and Michael Harvey that their prosecution in this case violated their fifth amendment double jeopardy rights. To reiterate briefly, the basis of their claim is that the earlier prosecution in South Carolina had placed MacDougall, Gunn and Sanders" }, { "docid": "23127728", "title": "", "text": "971, 1033 (5th Cir.1981), in which the Fifth Circuit held that proof of importation from a place outside the United States may be established by circumstantial evidence, including “evidence that a boat from which marijuana was unloaded went outside United States territorial waters or met with any other vessel that had — for example, a ‘mother ship.’ ” As was the case in Peabody, however, there was no evidence that the drugs in question originated in the United States. The facts of Phillips involved drugs that were brought into the United States from Colombia from motherships off the coast of Florida. Id. at 987. Phillips therefore does not provide support for the contention that § 952(a) prohibits the domestic transport of drugs through international airspace. The Eleventh Circuit cases cited by the government are similarly inapt. In United States v. Lueck, 678 F.2d 895, 904-05 (11th Cir.1982), the court relied on the dictum from Peabody in holding that “[a]ny point outside[the] twelve mile limit of airspace and waters constitutes ‘a place outside the United States’ for purposes of proving importation under § 952(a).... The fact of crossing the boundary of the United States with contraband suffices to establish importation.” The Eleventh Circuit reiterated this point in United States v. Goggin, 853 F.2d 843 (11th Cir.1988), holding that “[t]he government may prove that a defendant imported cocaine into the United States ‘from any place outside thereof by showing that the defendant brought cocaine into the country from international waters or from airspace in excess of twelve geographical miles outward from the coastline.” Id. at 845 (citing Lueck, 678 F.2d at 905). In both Lueck and Goggin, however, the evidence suggested that the flights in question had originated in the Bahamas — not in the United States. Lueck, 678 F.2d at 896-97; Goggin, 853 F.2d at 843, 844. The domestic transport of narcotics was not demonstrated in either case. In fact, the only cases to adopt the government’s proposed interpretation of § 952(a) under factual circumstances similar to those presented here are our decisions in Perez, 776 F.2d at 801, and Sugiyama," }, { "docid": "1158920", "title": "", "text": "have never come under the control of customs authorities. Id. at 919. Appellant insists that since the stopover in Puerto Rico during his flight from Jamaica to Antigua was purely fortuitous, making him a completely in-transit passenger, he was outside the control of United States Customs and beyond the reach both of the search and this criminal prosecution. We see no statutory basis for appellant’s claim of exception, and, in regard to a prosecution for the importation and possession of controlled substances, we decline to find such an exception by implication. Two of appellant’s convictions were under statutes requiring little else but a showing that a defendant has knowingly brought a controlled substance with him from abroad into the United States (21 U.S.C. § 952(a)) or brought or possessed such a substance while on board an aircraft “arriving in or departing from the United States,” 21 U.S.C. § 955). For the purpose of these statutes, “the term United States, when used in a geographical sense, means all places and waters, continental or insular, subject to the jurisdiction of the United States.” 21 U.S.C. § 802(27) (Supp. III 1985) . The airport where the search and seizure occurred was clearly within the jurisdiction of the United States. No statute has been called to our attention exempting from that jurisdiction such places as transit lounges or the interiors of transiting aircraft. It is established that a controlled substance is imported into the United States if brought within the nation’s territorial boundaries. See, e.g., Palmero v. United States, 112 F.2d 922 (1st Cir.1940) (the words “import or bring” of the Narcotic Drugs Import and Export Act prohibit bringing the article within the territorial boundaries of the United States — within the waters or upon the lands — and does not require actual landing of the goods (quoting United States v. Caminata, 194 F. 903 (D.C.E.D. Pa.1912)); United States v. Catano, 553 F.2d 497 (5th Cir.) (a suitcase containing cocaine was found to have been “imported” into the United States, under section 952(a), when removed from an international flight and placed on a carousel" }, { "docid": "18747480", "title": "", "text": "and possession with intent to distribute the marijuana). MacDougall cites Palmero v. United States, 112 F.2d 922 (1st Cir.1940) for the proposition that the act of importation was complete when the contraband entered territorial waters. In Palmero, the First Circuit rejected the contention that the presence of narcotics in United States waters was insufficient to support a conviction for importing contraband and that the prohibited act of importation occurred only when the narcotics were landed. 112 F.2d at 924-25. Our holding here does not conflict with the rationale of Palmero. While crossing into United States waters in Palmero was sufficient to establish importation, that event is not necessarily also the termination of the act of importation. Those who unload a vessel carrying the imported contraband are an essential component of furthering the conspiracy to import. Common sense alone is sufficient to refute the proposition that off-loaders of marijuana and hashish transported by sea going vessels to United States shores cannot be instruments of the proscribed importation. The evidence was more than sufficient for the jury to conclude beyond a reasonable doubt that MacDougall had joined the conspiracy to import. With respect to MacDougall’s challenge to his conviction on Count Eight, possession with intent to distribute marijuana, the jury heard apparently conflicting testimony as to MacDougall’s involvement in that crime. George Strickland, who worked for the Riley-Harvey organization during two ventures in early 1979, testified that he saw MacDougall at the off-load site of the 8,000 pound marijuana venture. Warren Steele, one of the organizers of the Count Eight venture, testified that MacDougall was not involved in the only drug venture in which Steele claimed to have participated during this time period. In reviewing a jury verdict of guilty, an appellate court must examine the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Jones, 735 F.2d 785, 790 (4th Cir.), cert. denied, — U.S. -, 105 S.Ct. 297, 83 L.Ed.2d 232 (1984). A decision to overturn a jury verdict for want" }, { "docid": "23246774", "title": "", "text": "with Record and Palmero, that he traveled often to Jamaica, and that Record, Palmero, and himself had lost a plane in Jamaica in the course of their drug dealings. Id. at 480-87. Finally, Palmero indicated that Record received and sold the marijuana imported in the second of these first three deals. Id. at 334-35. The heart of the conspiracy charged in the indictment consists of the transactions that Record calls the “second conspiracy.” From approximately mid-1982 until late 1983 or early 1984, the key players were all heavily involved. Olarte provided marijuana and cocaine in Colombia, e.g., rec. vol. IV at 97, and Record provided transportation and security for the intermediate stop in the Bahamas, as well as transportation to Florida and distribution once there, id. at 55-56. Palmero and Jamieson assisted in offloading the drugs from planes in the Bahamas, and Jamieson transported the drugs by boat from the Bahamas to Florida. E.g., rec. vol. V at 347-50. Sometime during this period, Palmero began piloting the leg from Colombia to the Bahamas and began to take a more active organizational role. Id. at 362-367. At this juncture, evidence of a conspiracy involving these individuals is overwhelming. Record argues that the “third conspiracy” was separate in that Record was excluded by Olarte due to the loss of 20-25 kilos of cocaine. However, the purpose and method of operation remained the same. Jamieson, Palmero, and Olarte continued to participate. And despite Record’s insistence on his subsequent lack of participation, a “turnover,” much less a change by one, in personnel does not terminate a conspiracy. United States v. Brewer, 630 F.2d 795, 800 (10th Cir.1980) (individual who participated in initial drug transaction remained part of single, continuing conspiracy even after being excluded from future dealings by coconspirators). “That ‘some of the participants remained with the enterprise from its inception until it was brought to an end, and others joined or left the scheme as it went along,’ is of no consequence if each knew he was part of a larger ongoing conspiracy.” Id. (quoting United States v. Parnell, 581 F.2d 1374, 1382" }, { "docid": "23246765", "title": "", "text": "similar deal in fall 1982 involving 1500 pounds of marijuana. Record, Palmero, and indicted coconspirator Bobby Jamieson (Jamie-son) helped to unload marijuana from at least one of these plane deliveries to the Bahamas. On at least one occasion, the Jamieson transported the marijuana to Florida in his boat, a 30-foot Rybovich. Around December 1982, while using the same general method of operation, the activity of the participants expanded to include dealing in cocaine. Record, Palmero, and Olarte agreed to import 100 kilograms (kilos) of cocaine in the next transaction, but Olarte had difficulty with his cocaine source and instead substituted 1200 pounds of marijuana in this first intended cocaine deal. Apparently, this load of marijuana was dumped into the ocean and was never sold. The next transaction, in early 1983, successfully brought 115 kilos of cocaine and 500 pounds of marijuana into the United States. In this deal, Record, Jamieson, and Palmero helped to offload the plane in the Bahamas, and Jamieson transported the drugs to Florida by boat. Planning for the next importation of drugs began soon thereafter, with the discussions involving Record, Palmero, Olarte, and Olarte’s wife, Clara Lacle (Lacle). A few months later in 1983 or early in 1984, with Palmero taking a more active organizational role and piloting the plane, a Cessna 310, the operation smuggled into Florida 290 kilos of cocaine and 400 pounds of marijuana. Record assisted in offloading the plane, and Jamieson transported the drugs to Florida by boat. In the 290-kilo deal, Record held back 20 to 25 kilos of Olarte’s cocaine, claiming that they were lost. Olarte absorbed the loss and decided to exclude Record from the next planned deal, using Palmero and Jamieson instead to fill Record’s former organizational and transportation roles. In early 1985, Olarte, Palmero, and Ja-mieson brought 390 kilos of cocaine into Florida. Olarte, Palmero, and Jamieson met in Aruba around October 1986 to plan the importation of 400 to 500 kilos of cocaine into the United States. Olarte was arrested in November 1986 regarding participation in a different drug operation, but continued from his place of" }, { "docid": "22587716", "title": "", "text": "(emphasis added). The Aslam court compared illegal importation of aliens to the illegal importation of controlled substances. In doing so, it cited Leal, 831 F.2d 7, and MacDougall, 790 F.2d 1135, where the First Circuit and the Fourth Circuit stated, not that the illegal importation ended when the initial transporter ceases to transport the imported object or person, but rather when they reached their “final destination.” Leal, 831 F.2d at 9 (“[Ijmportation is a ‘ “continuous crime” that is not complete until the controlled substance reaches its final destination point.’ ” (quoting Corbin, 734 F.2d at 652)); MacDougall, 790 F.2d at 1151 (same); see also Sandini, 803 F.2d at 128(stating that for purposes of establishing venue under 18 U.S.C. § 3237(a), “the proper venue for the prosecution was the final destination of the contraband rather than the port at which the narcotics entered the country”). No court has conclusively defined the temporal parameters of importation offenses. See Leal, 831 F.2d at 9(stating that “[w]hile the precise temporal parameters of importation have not yet been addressed,” it is clear that “importation is a continuous crime that is not complete until the controlled substance reaches its final destination point” (internal quotation marks omitted)). Nevertheless, as in other contexts, this is a matter that is best left for the jury to decide based on the facts presented in each case and the vagaries of smuggling schemes concocted by the criminal mind. Moreover, when Congress amended the alien smuggling statute in 1986, it did not seek to narrow its construction of general importation offenses. Instead, it sought to “expand the scope of activities proscribed” by “smuggling and related offenses.” See H.R. Rep. No. 99-682(1), 65 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5669. “[It] believefd] such modifications ... essential in light of recent judicial opinions which ha[d] interpreted [then] existing law as not applying to certain activities that clearly [we]re prejudicial to the interests of the United States.” Id. Today, rather than adhering to unambiguous congressional intent, our court unnecessarily restricts the scope of the “brings to” offense and creates inconsistency in the law by" }, { "docid": "1570732", "title": "", "text": "the defendant argued that he was an interna tional traveler exempt from § 952(a) under Pentapati. The court affirmed the conviction, and held that upon the facts of his case the defendant could not rely upon the Pentapati dictum. The court noted that the defendant and the heroin, having already gone through U.S. Customs, could have remained in the United States upon arrival in Miami. The court did state that if Pentapati created an exception to § 952, the exception might apply to a traveler on an international flight who makes a brief stopover in the United States but does not pass through customs. See 492 F.Supp. at 919. The appellants argue that their case falls squarely under the Pentapati exception as interpreted in Madalone. They point out that Foreman and Lewis did not go through U.S. Customs and that the baggage containing the cocaine, if U.S. officials had not intervened, would have been carried unopened to West Germany. They thus ask this court to turn the Pentapati and Madalone dictum into an express holding that § 841(a)(1) does not apply to a drug dealer’s possession of narcotics within United States territory but outside its customs boundaries. We decline this invitation for several reasons. As an initial matter, both Pentapati and Madalone, in relevant part, interpreted 21 U.S.C. § 952(a), proscribing importation, and not § 841(a)(1), proscribing possession with intent to distribute. However, as we accept the appellants’ implicit assumption that cases decided under § 952(a) are to some degree instructive in prosecutions under § 841(a)(1), we must also take note of cases such as United States v. Catano, 553 F.2d 497, 500 (5th Cir.), cert. denied, 434 U.S. 865, 98 S.Ct. 199, 54 L.Ed.2d 40 (1977), and Palmero v. United States, 112 F.2d 922, 924 (1st Cir.1940). These cases hold that the crime of importation is complete when contraband is brought into United States territory, regardless of whether an attempt is made to bring the contraband through customs. They suggest that the crime of possession likewise is complete when possession occurs upon United States territory, and that an attempt" }, { "docid": "18747479", "title": "", "text": "marijuana unloaded at Calibogue Cay, Hilton Head in 1979. The issue in MacDougall’s challenge to his convictions of conspiracy to import and importation of hashish is not factual; the government does not dispute MacDougall’s self-characterization as an offloader. Rather, the question is a legal one: at what point did importation cease? The essence of MacDougall’s argument is that the importation of hashish was complete once the contraband had crossed the United States border, which occurred in this case when it entered the territorial waters of the United States. We disagree. MacDougall’s argument would allow the imaginary boundary line not only to establish the requisite international element in importation, but also divide artificially and inaccurately into two separate components the process by which drugs are imported into the United States. Importation is a continuous crime not complete until the controlled substances reach their final destination and the cargo is offloaded. United States v. Corbin, 734 F.2d 643, 652 (11th Cir.1984) (importation still in progress at time marijuana was offloaded; offloading furthered the conspiratorial objectives of importation and possession with intent to distribute the marijuana). MacDougall cites Palmero v. United States, 112 F.2d 922 (1st Cir.1940) for the proposition that the act of importation was complete when the contraband entered territorial waters. In Palmero, the First Circuit rejected the contention that the presence of narcotics in United States waters was insufficient to support a conviction for importing contraband and that the prohibited act of importation occurred only when the narcotics were landed. 112 F.2d at 924-25. Our holding here does not conflict with the rationale of Palmero. While crossing into United States waters in Palmero was sufficient to establish importation, that event is not necessarily also the termination of the act of importation. Those who unload a vessel carrying the imported contraband are an essential component of furthering the conspiracy to import. Common sense alone is sufficient to refute the proposition that off-loaders of marijuana and hashish transported by sea going vessels to United States shores cannot be instruments of the proscribed importation. The evidence was more than sufficient for the jury" }, { "docid": "22587715", "title": "", "text": "F.2d 751, 755 (2d Cir.1991). Aslam, a Pakistani citizen, met two illegal aliens just south of the Canadian border. Id. at 753. The evidence showed that a guide had driven the aliens to the Canadian side of the border, accompanied them across the border, and then walked back to the Canadian side. Id. Aslam waited for the aliens at a prearranged location south of the border to “complete their entry into the United States.” Id. In concluding that Aslam’s conduct violated the “bringing to” prong of the statute, the Second Circuit stated that section 1324(a)(2) punishes those who participate in the process of bringing illegal aliens into the United States, and ... the offense does not end at the instant the alien sets foot across the border. The illegal importation of aliens, like the illegal importation of drugs, see United States v. Leal, 831 F.2d 7, 9(1st Cir.1987), United States v. MacDougall, 790 F.2d 1135, 1150-51, 1153 (4th Cir.1986), continues at least until the alien reaches his immediate destination in this country. Id. at 755 (emphasis added). The Aslam court compared illegal importation of aliens to the illegal importation of controlled substances. In doing so, it cited Leal, 831 F.2d 7, and MacDougall, 790 F.2d 1135, where the First Circuit and the Fourth Circuit stated, not that the illegal importation ended when the initial transporter ceases to transport the imported object or person, but rather when they reached their “final destination.” Leal, 831 F.2d at 9 (“[Ijmportation is a ‘ “continuous crime” that is not complete until the controlled substance reaches its final destination point.’ ” (quoting Corbin, 734 F.2d at 652)); MacDougall, 790 F.2d at 1151 (same); see also Sandini, 803 F.2d at 128(stating that for purposes of establishing venue under 18 U.S.C. § 3237(a), “the proper venue for the prosecution was the final destination of the contraband rather than the port at which the narcotics entered the country”). No court has conclusively defined the temporal parameters of importation offenses. See Leal, 831 F.2d at 9(stating that “[w]hile the precise temporal parameters of importation have not yet been addressed,”" } ]

[ { "docid": "5002689", "title": "", "text": "Robinson, 266 Ill.Dec. 879, 775 N.E.2d at 960. A plaintiff may allege that conduct is unfair under ICFA without alleging that the conduct is deceptive. Saunders v. Mich. Ave. Nat’l Bank, 278 Ill.App.3d 307, 214 Ill.Dec. 1036, 662 N.E.2d 602, 608 (1996). While charging an unconscionably high price generally is insufficient to establish a claim for unfairness, whether a practice is unfair depends on a case-by-case analysis. Id. Robinson adopted the three-prong test used by the Connecticut Supreme Court in Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 612 A.2d 1130, 1143 (1992), to determine unfairness and held a defendant’s conduct must: (1) violate public policy; (2) be so oppressive that the consumer has little choice but to submit; and (3) cause consumers substantial injury. 266 Ill.Dec. 879, 775 N.E.2d at 961. A court may find unfairness even if the claim does not satisfy all three criteria. Id. Robinson did not discuss Montes’ analysis regarding what constitutes a substantial injury, but we find it instructive: the injury must: (1) be substantial; (2) not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and (3) be an injury that consumers themselves could not reasonably have avoided. Montes, 612 A.2d at 1147. In addition, to prevail under ICFA, a plaintiff must demonstrate that the defendant’s conduct is the proximate cause of the injury. Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 267 Ill.Dec. 14, 776 N.E.2d 151, 160 (2002) (“Unlike an action brought by the Attorney General under [ICFA], which does not require that ‘any person has in fact been misled, deceived or damaged[,]’ ... a private cause of action brought under [ICFA] requires proof of ‘actual damage.’ ... [and] proof that the damage occurred ‘as a result of the deceptive act or practice.” (citations omitted)); Oshana v. Coca-Cola Co., 472 F.3d 506, 514-15 (7th Cir.2006); Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill.2d 100, 296 Ill.Dee. 448, 835 N.E.2d 801, 861 (2005) (“Proximate causation is an element of all private causes of action under the Act.”). So Siegel must set forth sufficient evidence" } ]

[ { "docid": "12677533", "title": "", "text": "the details of the agency relationship between Farmers and the Lombardi Agency are exclusively within the Defendants’ custody and control. Dolemba is not required to plead specific evidence to which he is not privy in his complaint. See Charvat v. Allstate Corp., 29 F.Supp.3d 1147, 1151 (N.D. Ill. 2014) (explaining that consumers may acquire evidence of an alleged agency relationship through discovery if they do not have independent access to such information); see also Smith v. State Farm Mut. Auto. Ins. Co., 30 F.Supp.3d 765, 776 (N.D. Ill. 2014) (similar). Dolemba has sufficiently put Farmers on notice of his claim of vicarious liability, and the Court finds that he has alleged facts sufficient to make the claim plausible on its face. Defendants’ motions to dismiss the TCPA claims alleged under § 227(b)(1)(A)(iii) are denied. C. Illinois Consumer Fraud Act The ICFA is “intended to protect consumers, borrowers, and business persons against fraud, unfair methods of competition, and other unfair and deceptive business practices” and is “liberally construed to effectuate its purpose.” Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 266 Ill.Dec. 879, 775 N.E.2d 951, 960 (2002). The elements of an ICFA claim are: “(1) a deceptive or unfair act or practice by the defendant; (2) the defendant’s intent that the plaintiff rely on the deceptive or unfair practice; and (3) the unfair or deceptive practice occurred during a course of conduct involving trade or commerce.” Siegel v. Shell Oil Co., 612 F.3d 932, 934 (7th Cir. 2010). “A plaintiff may allege that conduct is unfair.. .without alleging that the conduct is deceptive.” Id. at 935. Unfairness is evaluated using three factors: “(1) whether the practice offends public policy; (2) whether it is immoral, unethical, oppressive, or unscrupulous; [and] (3) whether it causes substantial injury to consumers.” Robinson, 266 Ill.Dec. 879, 775 N.E.2d at 961. A “practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.” Id. Nelson v. Ashford Univ., LLC, No. 16-CV-3491, 2016 WL 4530325, at *2 (N.D. Ill. Aug. 29," }, { "docid": "16235788", "title": "", "text": "Illinois Supreme Court’s holdings in Oliveira and Shannon make clear that to establish proximate causation and thus a violation of Section 2 of the Consumer Fraud Act, a plaintiff actually must be deceived. Oliveira, 201 Ill.2d at 155, 267 Ill. Dec. 14, 776 N.E.2d at 164; Shannon, 208 Ill.2d at 525, 281 Ill.Dec. 845, 805 N.E.2d at 217. Coca-Cola concludes issues of proximate cause and actual deception under the Consumer Fraud Act require individual determinations precluding typicality and class certification. Specifically, Coca-Cola contends each putative class member was exposed to a different mix of representations and the materiality of those representations varied among the class members. The Consumer Fraud Act provides: Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the “Uniform Deceptive Trade Practices Act”, ... in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby. 815 ILCS 505/2. The Consumer Fraud Act did not originally provide a private cause of action for violations of Section 2; unlawful business practices were generally prosecuted by the state attorney general. Oliveira, 201 Ill.2d at 148, 267 Ill.Dec. 14, 776 N.E.2d at 160. In 1973, Section 10a(a) was added (815 ILCS 505/10a(a)), expressly authorizing private causes of action to any person who suffers “actual damages” as a result of a violation of the Act. Id., 201 Ill.2d at 148-49, 267 Ill.Dec. 14, 776 N.E.2d at 160. “Further, a private cause of action brought under section 10a(a) requires proof that the damage occurred ‘as a result of the deceptive act or practice.’” Id., 201 Ill.2d at 149, 267 Ill.Dec. 14, 776 N.E.2d at 160. “This language imposes a proximate causation requirement.” Id. Thus, to succeed on a private cause of action" }, { "docid": "3418569", "title": "", "text": "That the FDCPA as a whole has a “remedial purpose” does not justify ignoring its statute of limitations. For these reasons, the FDCPA claim is dismissed under Rule 12(b)(6). B. The ICFA Claim The ICFA is a “regulatory and remedial statute intended to protect consumers, borrowers, and business persons against fraud, unfair methods of competition, and other unfair and deceptive business practices.” Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 266 Ill.Dec. 879, 775 N.E.2d 951, 960 (2002). The statute provides redress for deceptive business practices and also for business practices that, while not deceptive, are unfair. See ibid.; Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 574-75 (7th Cir.2012). “The Act is ‘liberally construed to effectuate its purpose.’ ” Wigod, 673 F.3d at 574 (quoting Robinson, 266 Ill.Dec. 879, 775 N.E.2d at 960). The Hills submit that Defendants’ alleged actions were both deceptive and unfair, while LPS contends that they were neither. The court will consider both prongs of the ICFA, beginning with unfairness. The statute of limitations applicable to ICFA claims is three years, see 815 ILCS 505/10a(e), so none of the Hills’ factual allegations are time-barred and all will be considered. To determine whether a business practice is unfair, the court considers “(1) whether the practice offends public policy; (2) whether it is immoral, unethical, oppressive, or unscrupulous; [and] (3) whether it causes substantial injury to consumers.” Robinson, 266 Ill.Dec. 879, 775 N.E.2d at 961 (citing FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244 n. 5, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972)). “All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.” Ibid.; see also Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663, 669 (7th Cir. 2008). Unfairness under the ICFA “depends on a case-by-case analysis.” Siegel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir.2010). “Because neither fraud nor mistake" }, { "docid": "5002690", "title": "", "text": "outweighed by any countervailing benefits to consumers or competition that the practice produces; and (3) be an injury that consumers themselves could not reasonably have avoided. Montes, 612 A.2d at 1147. In addition, to prevail under ICFA, a plaintiff must demonstrate that the defendant’s conduct is the proximate cause of the injury. Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 267 Ill.Dec. 14, 776 N.E.2d 151, 160 (2002) (“Unlike an action brought by the Attorney General under [ICFA], which does not require that ‘any person has in fact been misled, deceived or damaged[,]’ ... a private cause of action brought under [ICFA] requires proof of ‘actual damage.’ ... [and] proof that the damage occurred ‘as a result of the deceptive act or practice.” (citations omitted)); Oshana v. Coca-Cola Co., 472 F.3d 506, 514-15 (7th Cir.2006); Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill.2d 100, 296 Ill.Dee. 448, 835 N.E.2d 801, 861 (2005) (“Proximate causation is an element of all private causes of action under the Act.”). So Siegel must set forth sufficient evidence creating a genuine issue of material fact that “but for” the defendants’ unfair conduct, he would not have been damaged, i.e., he would not have purchased the defendants’ gasoline at artificially inflated prices. A. Class Certification Siegel appeals the district court’s ruling denying his motion for certification of an Illinois consumer class (and its ruling denying his motion for reconsideration). We review the district court’s decision to deny class certification for abuse of discretion. Payton v. County of Carroll, 473 F.3d 845, 847 (7th Cir.2007). A district court may certify a class of plaintiffs if the putative class satisfies all four requirements of Federal Rule of Civil Procedure 23(a) — numerosity, commonality, typicality, and adequacy of representation — and any one of the conditions of Rule 23(b). Oshana, 472 F.3d at 513. Under Rule 23(b)(3), a district court must determine whether “the questions or fact common to class members predominate over any questions affecting only individual members, and that a class action is superi- or to other available methods for fairly and efficiently adjudicating the" }, { "docid": "7822983", "title": "", "text": "Development Co., Inc., 153 Ill.2d 534, 542, 180 Ill.Dec. 300, 607 N.E.2d 194 (1992)); see also Connick, 174 Ill.2d at 499, 221 Ill.Dec. 389, 675 N.E.2d 584 (“Plaintiffs rebanee is not an element of statutory consumer fraud,” citing Harkala v. Wildwood Realty, Inc., 200 Ill.App.3d 447, 453, 146 Ill.Dec. 232, 558 N.E.2d 195 (1990)); Martin, 163 Ill.2d at 76, 205 Ill.Dec. 443, 643 N.E.2d 734 (“[The ICFA] does not require actual reliance”); Siegel, 153 Ill.2d at 542, 180 Ill.Dec. 300, 607 N.E.2d 194 (“On its face, it appears that all a plaintiff need prove to establish a violation of the [ICFA] is: (1) a deceptive act or practice, (2) intent on the defendants’ part that plaintiff rely on the deception, and (3) that the deception in the course of conduct involving trade or commerce. Significantly, the Act does not require actual reliance ” (emphasis added)). The same is not true of proximate causation, however. As noted, an ICFA plaintiff must show that defendant’s deception proximately caused his or her damage. See Clark v. Experian Information Solutions, Inc., 256 Fed.Appx. 818, 821 (7th Cir.2007) (Unpub. Disp.) (“We concluded that ‘a private cause of action under the ICFA requires a showing of proximate causation,”’ citing Oshana v. Coca-Cola Co., 472 F.3d 506, 514-15 (7th Cir.2006) (in turn citing 815 Ill. Comp. Stat. 505/10a); Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 149, 267 Ill.Dec. 14, 776 N.E.2d 151 (2002) (“Unlike an action brought by the Attorney General under [815 Ill. Comp. Stat. 505/2], which does not require that ‘any person has in fact been misled, deceived or damaged!,]’ • • • a private cause of action brought under section [505/10a(a) ] requires proof of ‘actual damage’ ... [and] proof that the damage occurred ‘as a result of the deceptive act or practice.’ As noted previously, this language imposes a proximate causation requirement [and] proof that the damage occurred ‘as a result of the deceptive act or practice”)). “To be sure, individual issues will almost always be present in consumer fraud actions.” Langendorf v. Skinnygirl Cocktails, LLC, 306 F.R.D. 574, 583, 2014 WL" }, { "docid": "22239068", "title": "", "text": "act or practice by the defendant; (2) the defendant’s intent that the plaintiff rely on the deceptive or unfair practice; and (3) the unfair or deceptive practice occurred during a course of conduct involving trade or commerce.” Siegel v. Shell Oil Co., 612 F.3d 932, 934 (7th Cir.2010), citing Robinson, 266 Ill.Dec. 879, 775 N.E.2d at 960. In addition, “a plaintiff must demonstrate that the defendant’s conduct is the proximate cause of the injury.” Id. at 935. Wigod accuses Wells Fargo of practices that are both deceptive and unfair. In her complaint, Wigod incorporates by reference her common-law fraud claims, alleging that Wells Fargo’s misrepresentation and concealment of material facts constituted deceptive business practices. Compl. ¶¶ 123-25. She also alleges that Wells Fargo dishonestly and ineffectually implemented HAMP, and that this conduct constituted “unfair, immoral, unscrupulous business practices.” Compl. ¶ 126. The district court dismissed Wigod’s ICFA claim on two grounds: first, because Wigod did not allege that Wells Fargo acted with an intent to deceive her; and second, because Wigod did not plausibly plead that Wells Fargo’s conduct caused her any actual pecuniary injury. On both points, we disagree. First, “intent to deceive” is not a required element of a claim under the ICFA, which provides redress “not only for deceptive business practices, but also for business practices that, while not deceptive, are unfair.” Boyd v. U.S. Bank, N.A. ex rel. Sasco Aames Mortg. Loan Trust Series 2003-1, 787 F.Supp.2d 747, 751 (N.D.Ill.2011) (holding that a loan servicer’s alleged failure to consider the plaintiffs eligibility for a HAMP modification was a sufficient predicate for an ICFA claim); see 815 ILCS 505/2 (“[U]nfair or deceptive acts or practices ... are hereby declared unlawful____”) (emphasis added); Siegel, 612 F.3d at 934-35 (“A plaintiff may allege that conduct is unfair under ICFA without alleging that the conduct is deceptive.”), citing Saunders v. Michigan Ave. Nat’l Bank, 278 Ill.App.3d 307, 214 Ill.Dec. 1036, 662 N.E.2d 602, 608 (1996). Wigod alleges that Wells Fargo engaged in both deceptive (fraudulent) and unfair business practices. Moreover, even if she had alleged only deceptive practices, pleading intent" }, { "docid": "22009411", "title": "", "text": "that establishing such a claim required individualized proof. Because of the need for individualized proof, the district court found that common class issues did not predominate. Plaintiffs argue that the website was deceptive per se, and therefore no individualized finding of proximate cause would be required. We agree with the district court and our prior case law confirms that a claim under ICFA requires individualized proof. A claim for consumer fraud under the ICFA contains five elements: “(1) a deceptive act or practice by the defendant, (2) the defendant’s intent that the plaintiff rely on the deception, (3) the occurrence of the deception in the course of conduct involving trade or commerce, and (4) actual damage to the plaintiff (5) proximately caused by the deception.” Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill.2d 100, 296 Ill.Dec. 448, 835 N.E.2d 801, 856 (2005) (citation omitted). Furthermore, “in a case alleging deception under the [Consumer Fraud] Act, it is not possible for a plaintiff to establish proximate causation unless the plaintiff can show that he or she was, ‘in some manner, deceived’ by the misrepresentation.” Id. at 861 (citation omitted). Satisfaction of this element requires individualized proof. We previously considered and rejected the argument that per se deceptiveness absolves a plaintiff from making individualized proofs of proximate cause under the ICFA. See Oshana, 472 F.3d at 513-15. We concluded that “a private cause of action under the ICFA requires a showing of proximate causation.” Id. at 514-15 (citing 815 Ill. Comp. Stat. 505/10a; Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 267 Ill.Dec. 14, 776 N.E.2d 151, 160 (2002) (“Unlike an action brought by the Attorney General under [815 111. Comp. Stat. 505/2], which does not require that ‘any person has in fact been misled, deceived or damaged[,]’... a private cause of action brought under [815 111. Comp. Stat. 505/10a] requires proof of ‘actual damage.’ ... [and] proof that the damage occurred ‘as a result of the deceptive act or practice.” (citations omitted))). Accordingly, to demonstrate proximate cause each member of the class would have to prove that the deceptive" }, { "docid": "7822984", "title": "", "text": "Solutions, Inc., 256 Fed.Appx. 818, 821 (7th Cir.2007) (Unpub. Disp.) (“We concluded that ‘a private cause of action under the ICFA requires a showing of proximate causation,”’ citing Oshana v. Coca-Cola Co., 472 F.3d 506, 514-15 (7th Cir.2006) (in turn citing 815 Ill. Comp. Stat. 505/10a); Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 149, 267 Ill.Dec. 14, 776 N.E.2d 151 (2002) (“Unlike an action brought by the Attorney General under [815 Ill. Comp. Stat. 505/2], which does not require that ‘any person has in fact been misled, deceived or damaged!,]’ • • • a private cause of action brought under section [505/10a(a) ] requires proof of ‘actual damage’ ... [and] proof that the damage occurred ‘as a result of the deceptive act or practice.’ As noted previously, this language imposes a proximate causation requirement [and] proof that the damage occurred ‘as a result of the deceptive act or practice”)). “To be sure, individual issues will almost always be present in consumer fraud actions.” Langendorf v. Skinnygirl Cocktails, LLC, 306 F.R.D. 574, 583, 2014 WL 5487670, *6 (N.D.Ill. Oct. 30, 2014). As the Seventh Circuit recently noted, however, it is legally erroneous to hold that individual issues necessarily predominate in [all] cases requiring individual subjective inquiries into causality. Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 759 (7th Cir.2014); see also Pella Corp. v. Saltzman, 606 F.3d 391, 393 (7th Cir.2010) (“While consumer fraud class actions present problems that courts must carefully consider before granting certification, there is not and should not be a rule that they never can be certified”). In cases like this one where the representation being challenged was made to all putative class members, Illinois courts have concluded that causation is susceptible of classwide proof and that individualized inquiries concerning causation do not predominate if plaintiffs are able to adduce sufficient evidence that the representation, was material. See, e.g., In re Synthroid Marketing Litigation, 188 F.R.D. 287, 292-93 (N.D.Ill.1999) (“The defendants argue that class certification under Rule 23(b)(3) is precluded because individualized issues relating to causation and damages predominate over the common issues in this lawsuit." }, { "docid": "22239067", "title": "", "text": "relationship. Wigod is right that HAMP requires servicers to help borrowers understand the modification terms. But this obligation is not owed to the general public — only to mortgagors in the HAMP modification process. If Wells Fargo had such obligations to Wigod, then, it was only because it executed a TPP agreement with her under HAMP. Any disclosure duties owed here are contractual ones and therefore do not sound in the torts of negligent misrepresentation or negligent concealment. We affirm the dismissal of these claims, and proceed to Wigod’s final cause of action. F. The Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA) The ICFA protects consumers against “unfair or deceptive acts or practices,” including “fraud,” “false promise,” and the “misrepresentation or the concealment, suppression or omission of any material fact.” 815 ILCS 505/2. The Act is “liberally construed to effectuate its purpose.” Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 266 Ill.Dec. 879, 775 N.E.2d 951, 960 (2002). The elements of a claim under the ICFA are: “(1) a deceptive or unfair act or practice by the defendant; (2) the defendant’s intent that the plaintiff rely on the deceptive or unfair practice; and (3) the unfair or deceptive practice occurred during a course of conduct involving trade or commerce.” Siegel v. Shell Oil Co., 612 F.3d 932, 934 (7th Cir.2010), citing Robinson, 266 Ill.Dec. 879, 775 N.E.2d at 960. In addition, “a plaintiff must demonstrate that the defendant’s conduct is the proximate cause of the injury.” Id. at 935. Wigod accuses Wells Fargo of practices that are both deceptive and unfair. In her complaint, Wigod incorporates by reference her common-law fraud claims, alleging that Wells Fargo’s misrepresentation and concealment of material facts constituted deceptive business practices. Compl. ¶¶ 123-25. She also alleges that Wells Fargo dishonestly and ineffectually implemented HAMP, and that this conduct constituted “unfair, immoral, unscrupulous business practices.” Compl. ¶ 126. The district court dismissed Wigod’s ICFA claim on two grounds: first, because Wigod did not allege that Wells Fargo acted with an intent to deceive her; and second, because Wigod did not plausibly plead" }, { "docid": "22895872", "title": "", "text": "v. Rochford, 565 F.2d 975, 977 (7th Cir.1977) (agreeing that class definitions must be definite enough that the class can be ascertained). We review the district court’s decision not to certify a class for abuse of discretion. Uhl v. Thoroughbred Tech. & Telecomm., Inc., 309 F.3d 978, 986 (7th Cir.2002). The district court did not abuse its discretion. The district court determined that the proposed class was not sufficiently definite to warrant class certification. Osha-na sued Coke for violating the ICFA and for unjust enrichment. To prevail on a claim for damages under the ICFA, Osha-na and her fellow class members must prove: (1) a deceptive act or practice by Coke; (2) that the act or practice occurred in the course of conduct involving trade or commerce;. (3) that Coke intended Oshana and the members of the class to rely on the deception; and (4) that actual damages were proximately caused by the deception. Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill.2d 100, 296 Ill.Dec. 448, 835 N.E.2d 801, 850 (Ill.2005); Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 267 Ill.Dec. 14, 776 N.E.2d 151, 164 (Ill.2002). In other words, a damages claim under the ICFA requires that the plaintiff was deceived in some manner and damaged by the deception. Oliveira, 267 Ill.Dec. 14, 776 N.E.2d at 164 (“Zekman [v. Direct Am. Marketers, 182 Ill.2d 359, 231 Ill.Dec. 80, 695 N.E.2d 853 (Ill.1998),] makes clear that, to properly plead the element of proximate causation in a private cause of action for deceptive advertising brought under the Act, a plaintiff must allege that he was, in some manner, deceived”). Membership in Oshana’s proposed class required only the purchase of a fountain Diet Coke from March 12, 1999, forward. Such a class could include millions who were not deceived and thus have no grievance under the ICFA. Some people may have bought fountain Diet Coke because it contained saccharin, and some people may have bought fountain Diet Coke even though it had saccharin. Countless members of Oshana’s putative class could not show any damage, let alone damage proximately caused by" }, { "docid": "5002687", "title": "", "text": "court then denied Siegel’s Fed.R.Civ.P. 23(f) Petition for Leave to Appeal. Then, the district court granted the defendants’ motion for summary judgment. Specifically, the district court held that Siegel could not prevail under his unfair practices claim because he failed to set forth sufficient evidence that but for the defendants’ purportedly unfair conduct, he would not have purchased their gasoline. The district court reached its conclusion based on Siegel’s deposition testimony, where he testified that many factors affected his gasoline purchases, including necessity, price, location, quality of gasoline, convenience, and environmental concerns, and that during the relevant time period, he purchased gasoline from non-defendants. Further, Siegel testified that he did not change his gasoline purchasing habits but continued to purchase the defendants’ gasoline even after he believed they were engaging in unfair conduct. The district court also ruled that Siegel could not prevail on his unjust enrichment claim based on the defendants’ conduct under ICFA, reasoning that because he could not establish a private cause of action under ICFA, unjust enrichment could not serve as the basis for liability. Finally, the district court entered judgment in favor of the defendants on Siegel’s deceptive practices claim under ICFA, his unjust enrichment claim sounding in quasi-contract, and his civil conspiracy claim. Siegel does not appeal these rulings. II. DISCUSSION ICFA “is a regulatory and remedial statute intended to protect consumers, borrowers, and business persons against fraud, unfair methods of competition, and other unfair and deceptive business practices.” Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 266 Ill.Dec. 879, 775 N.E.2d 951, 960 (2002). The elements of a claim under ICFA are: (1) a deceptive or unfair act or practice by the defendant; (2) the defendant’s intent that the plaintiff rely on the deceptive or unfair practice; and (3) the unfair or deceptive practice occurred during a course of conduct involving trade or commerce. See id., 266 111. Dec. 879, 775 N.E.2d at 960; see also Rickher v. Home Depot, Inc., 535 F.3d 661, 665 (7th Cir.2008). A plaintiff is entitled to recovery under ICFA when there is unfair or deceptive conduct." }, { "docid": "16635319", "title": "", "text": "to enter into this Assurance without admitting to the Attorney General’s finding or to any violation of law.” The 2004 Assurance of Discontinuation that JAB entered into does not affect the outcome of this case. We agree with the district court that Camasta failed to explain how the New York advertising practices that were the subject of the 2004 investigation are the same or similar to practices employed by JAB in Illinois between 2009 and 2012. Camasta argues that he sufficiently proved this simply by stating in his complaint that the practices were “the exact type of fraudulent sales practices complained of here.” While the facts of Camasta’s complaint are viewed in his favor, simply stating that the sales practices are the same in two different states during two different time periods without any factual support is insufficient to satisfy the pleading requirement. See Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (“[A] plaintiffs obligation to provide the grounds of his entitlefment] to relief requires more than labels and conclusions.”) (internal citation omitted). In short, the district court correctly concluded that Rule 9(b) applied and that its requirements were not satisfied by Camas-ta’s First Amended Complaint. B. Actual Damages The intent of the Illinois Consumer Fraud and Deceptive Business Practices Act is “to protect consumers, borrowers, and business persons against fraud, unfair methods of competition, and other unfair and deceptive business practices.” Siegel v. Shell Oil Co., 612 F.3d 932, 934 (7th Cir.2010) (citing Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 416-17, 266 Ill.Dec. 879, 775 N.E.2d 951 (2002)). In order to state a claim under the ICFA, a plaintiff must show: “(1) a deceptive or unfair act or promise by the defendant; (2) the defendant’s intent that the plaintiff rely on the deceptive or unfair practice; and (3) that the unfair or deceptive practice occurred during a course of conduct involving trade or commerce.” Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 574 (7th Cir.2012). When the plaintiff is a private party as Camasta is here, an action brought under the ICFA requires the plaintiff to" }, { "docid": "17835212", "title": "", "text": "Saunders v. Mich. Ave. Nat’l Bank, 278 Ill.App.3d 307, 214 Ill.Dec. 1036, 662 N.E.2d 602, 607 (1996) (citing Siegel v. Levy Org. Dev. Co., 153 Ill.2d 534, 180 Ill.Dec. 300, 607 N.E.2d 194, 198 (1992)). Recovery may be obtained for unfair and deceptive conduct, and thus a consumer may allege that conduct is unfair under the ICFA without also alleging that the conduct is deceptive. Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 266 Ill.Dec. 879, 775 N.E.2d 951, 960 (2002). The ICFA does not require actual reliance. Siegel, 180 Ill.Dec. 300, 607 N.E.2d at 198. Section 2 of the Act, 815 Ill. Comp. Stat. 505/2, directs that in determining whether conduct is unfair under the ICFA, interpretations of “unfair or deceptive practices” under section 5(a) of the Federal Trade Commission Act, 15 U.S.C. § 45(a), shall be considered. In FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972), the Supreme Court set out three factors for establishing unfair conduct: (1) whether the practice offends public policy; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers. Id. at 244 n. 5, 92 S.Ct. 898. The Illinois Supreme Court has interpreted Sperry to impose only a factor-based framework, not a three-part conjunctive test: “All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser degree it meets all three.” Robinson, 266 Ill.Dec. 879, 775 N.E.2d at 961. To state a claim under the ICFA using any of the Sperry factors, “the plaintiffs must describe how the [unfair practice] is oppressive or violates public policy. Without such a description, the complaint fails to state a cause of action.” Rockford Mem’l Hosp. v. Havrilesko, 368 Ill.App.3d 115, 306 Ill.Dec. 611, 858 N.E.2d 56, 65 (2006). Plaintiffs state a claim under section 2 of the ICFA because they allege “it was unfair and violative ... for the defendant to increase the consumer’s" }, { "docid": "22009412", "title": "", "text": "or she was, ‘in some manner, deceived’ by the misrepresentation.” Id. at 861 (citation omitted). Satisfaction of this element requires individualized proof. We previously considered and rejected the argument that per se deceptiveness absolves a plaintiff from making individualized proofs of proximate cause under the ICFA. See Oshana, 472 F.3d at 513-15. We concluded that “a private cause of action under the ICFA requires a showing of proximate causation.” Id. at 514-15 (citing 815 Ill. Comp. Stat. 505/10a; Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 267 Ill.Dec. 14, 776 N.E.2d 151, 160 (2002) (“Unlike an action brought by the Attorney General under [815 111. Comp. Stat. 505/2], which does not require that ‘any person has in fact been misled, deceived or damaged[,]’... a private cause of action brought under [815 111. Comp. Stat. 505/10a] requires proof of ‘actual damage.’ ... [and] proof that the damage occurred ‘as a result of the deceptive act or practice.” (citations omitted))). Accordingly, to demonstrate proximate cause each member of the class would have to prove that the deceptive nature of the website caused each of them to enroll in the credit monitoring service and incur unwanted charges. Such causation cannot necessarily be inferred from the fact that the class is defined as members who did not access the service; individuals could have enrolled in the service knowingly and chosen not to access it. Furthermore, even though the Federal Trade Commission and the Better Business Bureau found the website to be deceptive, this does not mean that all class members were deceived. Although not prominently displayed, the website did contain notice of the need to cancel, which individuals could have seen. Illinois law requires a finding of proximate causation under ICFA, and does not provide for such causation to be inferred. Oliveira, 776 N.E.2d at 164 (“[T]o properly plead the element of proximate causation in a private cause of action for deceptive advertising brought under the Act, a plaintiff must allege that he was, in some manner, deceived.”) (citing Zekman v. Direct Am. Marketers, 182 Ill.2d 359, 231 Ill.Dec. 80, 695 N.E.2d 853, 862" }, { "docid": "17835211", "title": "", "text": "to those just stated, this argument is not sufficient to state a claim that defendant knew they were violating the PFSA when they charged plaintiffs $60. That defendant sent a letter is evidence that it intentionally (and knowingly) charged plaintiffs’ accounts, but it is not evidence that defendant knowingly violated the PFSA. Plaintiffs do not allege that defendant intentionally violated the PFSA, and there are no allegations from which this can be inferred. For these reasons, plaintiffs fail to state a claim that defendant violated section 2Z of the ICFA. B. Whether plaintiffs state a claim for violation of Section 2 of the ICFA Section 2 of the ICFA prohibits “[u]nfair methods of competition and un fair or deceptive acts or practices.” 815 Ill. Comp. Stat. 505/2. To state a claim under section 2, a plaintiff must allege the following: (1) a deceptive act or unfair practice; (2) intent on defendant’s part that plaintiff rely on the deception or unfair practice; and (3) that deception occurred in the course of conduct involving trade or commerce. Saunders v. Mich. Ave. Nat’l Bank, 278 Ill.App.3d 307, 214 Ill.Dec. 1036, 662 N.E.2d 602, 607 (1996) (citing Siegel v. Levy Org. Dev. Co., 153 Ill.2d 534, 180 Ill.Dec. 300, 607 N.E.2d 194, 198 (1992)). Recovery may be obtained for unfair and deceptive conduct, and thus a consumer may allege that conduct is unfair under the ICFA without also alleging that the conduct is deceptive. Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 266 Ill.Dec. 879, 775 N.E.2d 951, 960 (2002). The ICFA does not require actual reliance. Siegel, 180 Ill.Dec. 300, 607 N.E.2d at 198. Section 2 of the Act, 815 Ill. Comp. Stat. 505/2, directs that in determining whether conduct is unfair under the ICFA, interpretations of “unfair or deceptive practices” under section 5(a) of the Federal Trade Commission Act, 15 U.S.C. § 45(a), shall be considered. In FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 92 S.Ct. 898, 31 L.Ed.2d 170 (1972), the Supreme Court set out three factors for establishing unfair conduct: (1) whether the practice offends public policy;" }, { "docid": "3418568", "title": "", "text": "Seventh Circuit’s understanding of the doctrine. See Kovacs v. United States, 614 F.3d 666, 676 (7th Cir.2010) (“The continuing violation doctrine ... does not apply to a series of discrete acts, each of which is independently actionable, even if those acts form an overall pattern of wrongdoing.”) (internal quotation marks omitted). Last, the Hills appeal to “the remedial purposes of the FDCPA,” Doc. 59 at 8-9, which “imposes strict liability” and whose “terms are to be applied ‘in a liberal manner,’ ” id. at 9 (quoting Buzzell v. Citizens Auto. Fin., Inc., 802 F.Supp.2d 1014, 1023 (D.Minn.2011)). This proposition does not get the Hills far, because the one-year limitations period is also part of the FDCPA and must be enforced to effectuate its own purpose of cutting off claims that challenge time-barred conduct. See Bd. of Regents of the Univ. of the State of N.Y. v. Tomanio, 446 U.S. 478, 487, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980) (stating that “[statutes of limitations are not simply technicalities” and explaining the policies behind them at length). That the FDCPA as a whole has a “remedial purpose” does not justify ignoring its statute of limitations. For these reasons, the FDCPA claim is dismissed under Rule 12(b)(6). B. The ICFA Claim The ICFA is a “regulatory and remedial statute intended to protect consumers, borrowers, and business persons against fraud, unfair methods of competition, and other unfair and deceptive business practices.” Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 266 Ill.Dec. 879, 775 N.E.2d 951, 960 (2002). The statute provides redress for deceptive business practices and also for business practices that, while not deceptive, are unfair. See ibid.; Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 574-75 (7th Cir.2012). “The Act is ‘liberally construed to effectuate its purpose.’ ” Wigod, 673 F.3d at 574 (quoting Robinson, 266 Ill.Dec. 879, 775 N.E.2d at 960). The Hills submit that Defendants’ alleged actions were both deceptive and unfair, while LPS contends that they were neither. The court will consider both prongs of the ICFA, beginning with unfairness. The statute of limitations applicable to ICFA claims" }, { "docid": "20739702", "title": "", "text": "would bar any recovery. This Court is agrees with the reasoning in Stonecrafters, rather than the Centerline line of cases, that a defendant’s loss of a single sheet of paper and a few drops of ink is of insufficient gravity to elicit nominal damages. Consequently, G.M. Sign’s claim for conversion under Illinois law fails because the conversion was de minimis and nominal damages do not apply. B. Unfair Practice under the Illinois Consumer Fraud and Deceptive Business Practices Act To state a cause of action under the ICFA for unfair practice, a plaintiff must allege: (1) a deceptive act or unfair practice by the defendant; (2) an intention on the part of the defendant that the plaintiff rely on the unfair practice; and (3) that the unfair practice occurred in the course of conduct involving commerce. Connick v. Suzuki Motor Co., 174 Ill.2d 482, 221 Ill.Dec. 389, 675 N.E.2d 584, 593 (1996). To determine whether a defendant’s conduct constitutes an unfair practice within the meaning of the ICFA, Illinois courts ask whether the following factors are present: “(1) whether the practice offends public policy; (2) whether it is immoral, unethical, oppressive, or unscrupulous; [and] (3) whether it causes substantial injury to consumers.” Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 266 Ill.Dec. 879, 775 N.E.2d 951, 960 (2002). Not all of the factors need to be met; an act may constitute an unfair practice based on the degree to which it meets one or more of the factors. Id. The first factor in Robinson has been met. Sending an unsolicited fax is a violation of federal law and Illinois law. See 47 U.S.C. § 227; 720 ILCS 5/26-3. As such, sending an unsolicited fax is against public policy. If, in fact, Elm Street sent an unsolicited fax to G.M. Sign — which must be assumed to be true at this stage of litigation — then Elm Street violated public policy. The second factor focuses on whether the conduct of the defendant is immoral, oppressive or unscrupulous. A practice is oppressive when it imposes a lack of meaningful choice or" }, { "docid": "3542518", "title": "", "text": "however, dooms Plaintiffs’ chapter 93A claims. Even assuming that doctors would not have prescribed Ketek and that Plaintiffs would not have paid for Ketek, there is no evidence that Plaintiffs suffered any injury for purposes of chapter 93A. Plaintiffs provide no proof that the severe, but rare, risks of Ketek use were ever realized by any of their beneficiaries who took the medicine, causing Plaintiffs’ to incur additional expenses. Moreover, there is no proof that Ketek proved ineffective, causing Plaintiffs to have to pay for a second round of antibiotics. In addition, Plaintiffs do not contend that they themselves possess any Ketek for which they might seek a refund. Accordingly, Plaintiffs have not established an injury of the sort compensa-ble under chapter 93A. 3. Illinois Law Plaintiffs have also not made out a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. 505/1 et seq. (the “ICFA”). Section 2 of the ICFA prohibits, inter alia, “unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact ....” Section 10a(a) of the ICFA,provides a private cause of action for violations of section 2, stating, in pertinent part, “[a]ny person who suffers actual damage as a result of a violation of [the ICFA] committed by any other person may bring an action against such person.” Although section 2 expressly provides that “unfair or deceptive acts or practices” are unlawful regardless of “whether any person has in fact been misled, deceived or damaged thereby,” the Supreme Court of Illinois has held that that provision applies only to actions brought by the Attorney General. Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 149, 267 Ill.Dec. 14, 776 N.E.2d 151, 160 (Ill.2002), In contrast, the Supreme Court has read the language of section 10a as imposing a proximate causation requirement. Id. Thus, “[t]o prove a private cause of action under section" }, { "docid": "16635320", "title": "", "text": "the district court correctly concluded that Rule 9(b) applied and that its requirements were not satisfied by Camas-ta’s First Amended Complaint. B. Actual Damages The intent of the Illinois Consumer Fraud and Deceptive Business Practices Act is “to protect consumers, borrowers, and business persons against fraud, unfair methods of competition, and other unfair and deceptive business practices.” Siegel v. Shell Oil Co., 612 F.3d 932, 934 (7th Cir.2010) (citing Robinson v. Toyota Motor Credit Corp., 201 Ill.2d 403, 416-17, 266 Ill.Dec. 879, 775 N.E.2d 951 (2002)). In order to state a claim under the ICFA, a plaintiff must show: “(1) a deceptive or unfair act or promise by the defendant; (2) the defendant’s intent that the plaintiff rely on the deceptive or unfair practice; and (3) that the unfair or deceptive practice occurred during a course of conduct involving trade or commerce.” Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 574 (7th Cir.2012). When the plaintiff is a private party as Camasta is here, an action brought under the ICFA requires the plaintiff to show he suffered “actual damage” as a result of the defendant’s violation of the act. 815 ILCS 505/10a; Kim v. Carter’s Inc., 598 F.3d 362, 365 (7th Cir.2010); Mulligan v. QVC, Inc., 382 Ill.App.3d 620, 321 Ill.Dec. 257, 888 N.E.2d 1190, 1196 (2008). In a private ICFA action, the element of actual damages “requires that the plaintiff suffer actual pecuniary loss.” Kim, 598 F.3d at 365 (internal citation omitted). The district court correctly found that Camasta failed to allege facts showing he suffered actual damage. Central to Camasta’s argument is the claim that the advertised “sale prices” were in fact just the normal or regular retail prices being promoted as temporary price reductions. Camasta claims that this sales technique encourages a sense of urgency and makes customers feel “pressure” to make purchases before an expected deadline. However, Camasta failed to provide any evidence that he paid more than the actual value of the merchandise he received. Without factual support or justification, Camasta asserts that he could have shopped around and found the same shirts for" }, { "docid": "3542519", "title": "", "text": "employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact ....” Section 10a(a) of the ICFA,provides a private cause of action for violations of section 2, stating, in pertinent part, “[a]ny person who suffers actual damage as a result of a violation of [the ICFA] committed by any other person may bring an action against such person.” Although section 2 expressly provides that “unfair or deceptive acts or practices” are unlawful regardless of “whether any person has in fact been misled, deceived or damaged thereby,” the Supreme Court of Illinois has held that that provision applies only to actions brought by the Attorney General. Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 149, 267 Ill.Dec. 14, 776 N.E.2d 151, 160 (Ill.2002), In contrast, the Supreme Court has read the language of section 10a as imposing a proximate causation requirement. Id. Thus, “[t]o prove a private cause of action under section 10a(a) of the Act, a plaintiff must establish: (1) a deceptive act or practice by the defendant, (2) the defendant’s intent that the plaintiff rely on the deception, (3) the occurrence of the deception in the course of conduct involving trade or commerce, and (4) actual damage to the plaintiff (5) proximately caused by the deception.” Avery v. State Farm Mut. Auto. Ins. Co., 216 Ill.2d 100, 180, 296 Ill.Dec. 448, 835 N.E.2d 801, 850 (Ill.2005) (citing Oliveira, 201 Ill.2d at 149, 267 Ill.Dec. 14, 776 N.E.2d at 160). In his R & R, Judge Reyes recommends dismissing Plaintiffs claims under the ICFA, stating that, “[f|or the same reasons Plaintiffs were unable to establish RICO Causation,” Plaintiffs cannot prove that Defendants’ “alleged deception caused them actual harm.” Sergeants III, 2012 WL 4336218, at *7. In support of this conclusion, Judge Reyes cites to Siegel v. Shell Oil Co., 612 F.3d 932 (7th Cir.2010), a putative class action brought by a gasoline consumer who asserted that the defendant oil companies acted in concert by manipulating refinery" } ]

[ { "docid": "6439673", "title": "", "text": "oppositions on the ground that the opposers could not quality “under any of the descriptiveness clauses, geographi cal or otherwise, of Section 5” of the Trade-Mark Act of 1905, and further held the notations of appellee to he registrable as valid technical trade-marks. All the opposers took separate appeals to the commissioner. He held, in effect, that, upon the facts appearing, the name “Cognac” is both descriptive and geographical (a matter admitted by the oppos-ers, although it is claimed to be more than merely descriptive or merely geographical) but that the use, both descriptive and geographical, made of the term in the business of opposers gave them the right to file the oppositions (citing the cases of Burmel Handkerchief Corp. v. Cluett, Peabody & Co., Inc., 29 C. C. P. A. (Patents) 1024, 127 F. (2d) 318, and Trustees Arch Preserver Shoe Patents v. J. McCreery & Co., 18 C. C. P. A. (Patents) 1507, 49 F. (2d) 1068), but said (we quote from his decision in appeal 4837) inter alia:- It seems to me the only question requiring determination is whether it appears reasonably likely that people seeing the name “Calognac” on brandy will believe the brandy to be cognac; in other words whether “Calognac” will be reasonably likely to impress purchasers and the public as merely a corruption or a mere misspelling of the word “cognac” and to mean nothing else but cognac either descriptively or geographically or both; for instance as in the case of American Druggists Syndicate v. U. S. Industrial Alcohol Co., 55 App. D. C. 140, 2 Fed. (2) 942, 332 O. G. 5, which involved the words “A1 — Kol” and “alcohol.” If the mark “Calognac” applied to brandy would not be likely to lead purchasers and the public to believe the brandy actually was cognac opposer would not be likely to be damaged by registration of the mark and the opposition would fail for that reason. Accordingly, after further discussion hereinafter alluded to, he, in effect, affirmed the decisions of the Examiner of Trade-Mark Interferences dismissing the several oppositions, and also affirmed" } ]

[ { "docid": "14532664", "title": "", "text": "sustained the notice of opposition and denied appellee’s application for registration. Upon appeal from this decision, the Commissioner of Patents did not expressly pass upon the question of whether the goods to Avhich . the marks were applied by the respective parties were of the same descriptive properties, but held that, whether the assignments in question had any validity as a transfer of any legal rights from appellant to appellee, they at least constituted an abandonment of the trade-mark in so far as it applied to the goods to which appellee applied the mark, and evidenced acquiescence by appellant in the use of the mark, to the extent indicated, by appellee’s predecessor. Upon this theory, the commissioner held that appellant was estopped to object to the use of the mark by appellee upon canned fruits and vegetables, and, being so estopped, that it was also estopped to object to the registration applied for. The commissioner, in his decision, states: In the present case, as above noted, the opposer is estopped to object to the use of a mark by applicant. Being so estopped, it is deemed that it is also estopped to object to the registration. There being no evidence of any confusion between the goods of the respective parties, notwithstanding applicant has used the mark on its goods for several years, it is not deemed this office should now refuse registration on the ground that confusion would be likely. The commissioner, for the reasons stated, reversed the examiner of interferences, and from such decision applicant takes this appeal. That fresh fruits and canned fruits and vegetables are goods of the same descriptive properties is well established. California Packing Corporation v. Tillman & Bendel, Inc., 17 C. C. P. A. (Patents) 1048, 40 F. (2d) 108; Cheek-Neal Coffee Co. v. Hal Dick Mfg. Co., 17 C. C. P. A. (Patents) 1103, 40 F. (2d) 106; Reid-Murdoch & Company v. Fillmore Citrus Fruit Association; 151 Ms. D. 452, 17 T. M. Rep. 250. Appellee, however, relies chiefly upon its contention that, as was held by -the Commissioner of Patents, appellant, because" }, { "docid": "23607142", "title": "", "text": "C. C. P. A. (Patents) 916, 133 F. 2d 947, 56 USPQ 586. Likelihood of confusion affords sufficient evidence of probable damage, even though the opposer may not have used its mark as a technical trademark. George H. Ruth Gandy Co. v. The Curtiss Candy Co., 18 C. C. P. A. (Patents) 1471, 49 F. 2d 1033, 9 U. S. Pat. Q. 452; Virginia Dare Extract Co. Inc. v. Adah Mae Dare, 21 C. C. P. A. (Patents) 1086, 70 F. 2d 118, 21 U. S. Pat. Q. 334, and cases there cited. Appellee contends that, in view of the suggestive nature of “Slim,” appellant should not be allowed to prevent others from using that word, at least in its descriptive sense. However, the issue here is not' whether appellee is entitled to use the mark “Vita-Slim,” but whether it is entitled to register that mark. Since we are of the opinion that, concurrent use of “Slini” and “Vita-Slim” by the respective parties, on identical merchandise would be likely to result in confusion 'in-trade, we conclude that the latter mark is not registrable to appellee in view of appellant’s prior use of the former, and the decision of the. Assistant Commissioner is accordingly reversed. Jackson, J., retired, recalled to participate." }, { "docid": "14532667", "title": "", "text": "trade-mark which is substantially identical with a trade-mark appropriated to goods of the same descriptive properties, for which a certificate of registration has been previously issued to another, or for registration of which another has previously made application, or which so nearly resembles such trade-mark, or a known trade-mark owned and used by another, as, in the opinion of the commissioner, to be likely to be, mistaken therefor by the public, he may declare that an interference exists as to such trade-mark, and in every case of interference or opposition to registration he shall direct the ewaminer in charge of interferences to determine the question of the right of registration to such trade-mark, and of the sufficiency of objections to registration, in such manner and upon such notice to those interested as the commissioner may by rules prescribe. (Italics ours.) The commissioner may refuse to register the mark against the registration of which objection is filed, or may refuse to register both of two interfering marks, or may register the mark, as a trade-mark, for the person first to adopt and use the mark, if otherwise entitled to register the same, unless an appeal is taken, as hereinafter provided for, from his decision, by a party interested in the proceeding, within such time (not less than twenty days) as the commissioner may prescribe. We call attention, to two mandatory provisions of this section. The commissioner shall direct the examiner in charge of interferences to determine the question of (1) the right of registration to such trade-mark, and (2) the sufficiency of objections to registration. Under this language it is the duty of the officials of the Patent Office to determine not only whether an opposer has made valid objections to an application for registration, as to which it may be that estoppel can be invoked, but the duty is also imposed of determining the right of registration of the trade-mark against which the objection is filed. In the case of California Cyanide Co. v. American Cyanamid Co., 17 C. C. P. A. (Patents) 1146, 40 F (2d) 1003, this court," }, { "docid": "15276183", "title": "", "text": "for the first time, so far as we are able to learn, the question of whether a surname, without including the baptismal name, is within the prohibition of said proviso. The next contention of appellant is that appellee will not be damaged by the registration of the mark applied for by appellant, and that there is nothing in the record from which any damage to him can ;be inferred. We find it unnecessary to pass upon this question, for we have repeatedly held that in a trade-mark opposition proceeding the Patent Office tribunals may dispose of any question relating to the proposed registration that might properly arise in an ex yarte case. California Cyanide Co. v. American Cyanamid Co., 17 C. C. P. A. (Patents) 1198, 40 F. (2d) 1003; California Canneries Co. v. Lush'us Products Co., 18 C. C. P. A. (Patents) 1480, 49 F. (2d) 1044, and cases therein cited. Therefore, appellant’s application must, for the reasons herein stated, be denied, irrespective of whether the opposition of appel-lee should have been sustained or dismissed. The only object of the opposition was to defeat registration of appellant’s mark, and inasmuch as we hold that the commissioner did not err in rejecting appellant’s application, it is immaterial, so far as this appeal is concerned, whether he committed error in sustaining the opposition of appellee. If he did so err, it would not be ground for reversal of his decision rejecting appellant’s application. We do not wish to be understood in this opinion as holding that under no circumstances is a surname registrable. Many names have a significance other than as names, and are not regarded by the public as merely names. It is unnecessary for us here to determine whether in such cases a name is subject to the proviso hereinbefore quoted; upon the record before us, the name “ Wix ” has no other significance than as the name of an individual connected with the tobacco business. The decision of the Commissioner of Patents adjudging that appellant is not entitled to the registration for which it has applied is" }, { "docid": "23607141", "title": "", "text": "in trade. The fact that each of the parties applies an additional name or trademark to its product is not sufficient to remove the likelihood of confusion. The right to register a trademark- must be determined on the basis of what is set forth in the application rather than the manner in which the mark may be actually used. Intercontinental Mfg. Co. v. Continental Motors Corp., 43 C. C. P. A. (Patents) 841, 230 F. 2d 621, 109 USPQ 105; Kiekhaefer Corp. v. Willys-Overland Motors, Inc., 43 C. C. P. A. (Patents) 1013, 236 F. 2d 423, 111 USPQ 105. Appellee notes that an application by appellant for registration of “Slim” as a trademark was dropped after the filing of an opposition based on the mark “Klim.” However, it is not necessary that an opposer shall be the registrant or exclusive owner of the mark on which it relies. It is sufficient to show that the opposer would prob-. ably be damaged by the registration which it opposes. Vi-Jon Laboratories, Inc. v. Lentheric Inc., 30 C. C. P. A. (Patents) 916, 133 F. 2d 947, 56 USPQ 586. Likelihood of confusion affords sufficient evidence of probable damage, even though the opposer may not have used its mark as a technical trademark. George H. Ruth Gandy Co. v. The Curtiss Candy Co., 18 C. C. P. A. (Patents) 1471, 49 F. 2d 1033, 9 U. S. Pat. Q. 452; Virginia Dare Extract Co. Inc. v. Adah Mae Dare, 21 C. C. P. A. (Patents) 1086, 70 F. 2d 118, 21 U. S. Pat. Q. 334, and cases there cited. Appellee contends that, in view of the suggestive nature of “Slim,” appellant should not be allowed to prevent others from using that word, at least in its descriptive sense. However, the issue here is not' whether appellee is entitled to use the mark “Vita-Slim,” but whether it is entitled to register that mark. Since we are of the opinion that, concurrent use of “Slini” and “Vita-Slim” by the respective parties, on identical merchandise would be likely to result in confusion 'in-trade, we" }, { "docid": "14532668", "title": "", "text": "the person first to adopt and use the mark, if otherwise entitled to register the same, unless an appeal is taken, as hereinafter provided for, from his decision, by a party interested in the proceeding, within such time (not less than twenty days) as the commissioner may prescribe. We call attention, to two mandatory provisions of this section. The commissioner shall direct the examiner in charge of interferences to determine the question of (1) the right of registration to such trade-mark, and (2) the sufficiency of objections to registration. Under this language it is the duty of the officials of the Patent Office to determine not only whether an opposer has made valid objections to an application for registration, as to which it may be that estoppel can be invoked, but the duty is also imposed of determining the right of registration of the trade-mark against which the objection is filed. In the case of California Cyanide Co. v. American Cyanamid Co., 17 C. C. P. A. (Patents) 1146, 40 F (2d) 1003, this court, speaking through Judge Hatfield, said: Section 7 of the trade-mark act of February, 1905 (15 U. S. O. A. sec. 87), provides that “ * * * in every case of interference or opposition to registration he [the Commissioner of Patents] shall direct the examiner in charge of interferences to determine the question of the right of registration to such trade-mark, and of the sufficiency of objections to registration. * * *” (Italics ours.) Accordingly, the Patent Office tribunals may, in an opposition proceeding, dispose of any question relating to the proposed reg-'isttation that might properly arise in an ex parte case. In re Ilerhst, 32 App. D. C. 565. The case of Bookman v. Oakland Chemical Co., 11 C. C. P. A. (Patents) 1213, 40 F. (2d) 1006, is to the same effect. Therefore, granting that the defense of estoppel would lie against objections raised by appellant opposer, nevertheless it was the duty of the Patent Office to determine the right of registration, as in an ex parte case, upon the facts before the" }, { "docid": "15794281", "title": "", "text": "■goods, which marks have the same suffix which constitutes the only similar portion of the two marks here under review, it is deemed the opposer is not entitled to such a breadth •of protection as would preclude others from using any mark or notation however dissimilar from opposer’s which has the same suffix.” (Italics ours.) Accordingly, the Commissioner of Patents reversed the decision of the Examiner of Interferences, dismissed the opposition of appellant, and adjudged the applicant, appel-lee, entitled to the registration of its trademark “Silkeneso.” It is claimed by appellant that the goods of the respective parties possess the same descriptive properties; that the marks are confusingly similar; and that appellant will be damaged by the registration of appellee’s mark “Silkeneso.” Counsel for appellee, on the contrary, contends that the marks aro not confusingly similar; that appellant has never used the mark “Celanese” on garments in commerce, although it has registered its mark “Celanese” for use on such articles; and that, in view of the prior registrations of trademarks ending in “neso,” appellant is not the originator of a mark ending with those letters, and, therefore, is not entitled to broad protection in the use of its mark “Celanese.” It is not contended here that appellee was the first to adopt and use a trade-mark ending in the letters “neso.” It may be that appellant was not entitled to the registration of its mark “Celanese.” However, that question is not before us and will not be considered by this court in this proceeding. Sharp & Dohme v. Parke, Davis & Co., 37 F.(2d) 960, 17 C. C. P. A. 842; American Fruit Growers, Inc., v. Michigan Fruit Growers, Inc., 38 F.(2d) 696, 17 C. C. P. A. 906; National Biscuit Company v. Joseph W. Sheridan, 44 F. (2d) 987, 18 C. C. P. A. -; Decker & Cohn, Inc., v. S. Liebovitz Sons, Inc., 46 F.(2d) 179, 18 C. C. P. A.-. From a careful examination of the record we are Satisfied that the tribunals below were right in holding that appellant has used its trade-mark “Celanese” on yarn," }, { "docid": "15276182", "title": "", "text": "of February 20, 1905, have been uniform to the effect that a surname is within the prohibition of the proviso of said section 5 hereinbefore quoted. Thaddeus Davids Co. v. Davids, supra; In re The Nisley Shoe Co., supra; Oliver Chilled Plow Works v. The Wm. J. Oliver Manufacturing Company, 40 App. D. C. 125; Tinker, v. Patterson Dental Supply Co., 53 App. D. C. 37; Howard Co. v. Baldwin Co., 48 App. D. C. 437 In view of all the foregoing, we hold that a surname is included within the prohibition of the proviso of said section 5 hereinbefore quoted unless “ written, printed, impressed or woven in some particular or distinctive manner,” and that the registration here applied for is prohibited by said proviso While we might have rested our conclusion as to this point upon our decision in the case of In re The Nisley Shoe Co., supra, in which we held that a surname was not registrable, we have considered the question anew for the reason that appellant’s counsel has raised for the first time, so far as we are able to learn, the question of whether a surname, without including the baptismal name, is within the prohibition of said proviso. The next contention of appellant is that appellee will not be damaged by the registration of the mark applied for by appellant, and that there is nothing in the record from which any damage to him can ;be inferred. We find it unnecessary to pass upon this question, for we have repeatedly held that in a trade-mark opposition proceeding the Patent Office tribunals may dispose of any question relating to the proposed registration that might properly arise in an ex yarte case. California Cyanide Co. v. American Cyanamid Co., 17 C. C. P. A. (Patents) 1198, 40 F. (2d) 1003; California Canneries Co. v. Lush'us Products Co., 18 C. C. P. A. (Patents) 1480, 49 F. (2d) 1044, and cases therein cited. Therefore, appellant’s application must, for the reasons herein stated, be denied, irrespective of whether the opposition of appel-lee should have been sustained or" }, { "docid": "23607140", "title": "", "text": "143 F. 2d 883, 62 USPQ 276; Miles Laboratories, Inc. v. Foley & Co., 32 C. C. P. A. (Patents) 714, 144 F. 2d 888, 63 USPQ 64; Vital Foods Corporation v. Miles Laboratories Inc., 33 C. C. P. A. (Patents) 1136, 156 F. 2d 77, 70 USPQ 191. Moreover, appellee’s application contains a disclaimer of all rights to the expression “Vita” separate and/apart from its combination with “Slim.” It seems evident, therefore, that “Vita” cannot, properly be regarded as the. principal or dominant part of appellee’s mark. While the word “Slim” is suggestive of the intended effect of skim milk on the purchaser, ás indicated by.the fact that both parties have used it in association- with: the notation “non-fattening,” it would not be thought of as relating to the physical properties of the milk itself, and hence is not descriptive in the same sense as “Vita”’ In our opinion “Slim,”'forms the dominant part of appellee’s mark “Vita-Slim,” and the .concurrent use of those’two marks on identical goods would be likely to lead to confusion in trade. The fact that each of the parties applies an additional name or trademark to its product is not sufficient to remove the likelihood of confusion. The right to register a trademark- must be determined on the basis of what is set forth in the application rather than the manner in which the mark may be actually used. Intercontinental Mfg. Co. v. Continental Motors Corp., 43 C. C. P. A. (Patents) 841, 230 F. 2d 621, 109 USPQ 105; Kiekhaefer Corp. v. Willys-Overland Motors, Inc., 43 C. C. P. A. (Patents) 1013, 236 F. 2d 423, 111 USPQ 105. Appellee notes that an application by appellant for registration of “Slim” as a trademark was dropped after the filing of an opposition based on the mark “Klim.” However, it is not necessary that an opposer shall be the registrant or exclusive owner of the mark on which it relies. It is sufficient to show that the opposer would prob-. ably be damaged by the registration which it opposes. Vi-Jon Laboratories, Inc. v. Lentheric Inc., 30" }, { "docid": "14722997", "title": "", "text": "exclusive user of the mark for ten years prior to February 20, 1905, he, the applicant, must show exclusive use during said ten-year period. C. A. Gambrill Manufacturing Co. v. Waggoner-Gates Milling Co., 38 App. D. C. 532; Worster Brewing Corporation v. Rueter & Co., 30 App. D. C. 428. In the case last cited it wasi held that “an actual use must be shown to have been possessed and enjoyed by the applicant to the sole exclusion of all others.” (Italics ours.) In the ease of William Wrigley, Jr., & Co. v. Norris, 34 App. D. C. 138, which involved an opposition to registration under said ten-year clause, it was held, quoting from the syllabus: “Where an application for registration of a trademark is regular in form, the applicant is entitled to registration unless his prima facie case is overcome by the evidence on behalf of one opposing the granting of the application, in which event it is incumbent on the applicant to establish his right to registration by a fair preponderance of testimony.” It was incumbent upon appellee to allege and show an interest in the subject-matter of appellant’s application from which damage may be inferred. McIlhenny’s Son v. New Iberia Extract of Tobasco Pepper Co., Limited, 30 App. D. C. 337; California Cyanide Co. v. American Cyanamid Co., 40 F.(2d) 1003,17 C. C. P. A. 1198. This appellee has done; it has shown a use of the mark here in question at the time of the filing of appellant’s application, inconsistent with a trade-mark use of the same by appellant, and it was not necessary for it to show such use by it during the ten-year period preceding February 20, 1905. Appellee was entitled to show, if it could, that said mark was not in actual and exclusive use as a trade-mark by appellant or its predecessors during the ten years next preceding February 20, 1905, and, under the decisions heretofore cited, it was necessary only that appellee overcome theprima faeie ease, arising from appellant’s sworn application, that such mark was so used by it. If such" }, { "docid": "14819735", "title": "", "text": "of money in advertising its goods and its trade-mark “Shanghai”; and that its goods are sold to the purchasing public through, drug stores and department stores throughout the United States. It further appears from the evidence introduced by appellee that although appellee’s products are manufactured in the United States, certain “essence compounds,” used as ingredients therein, are produced in France. It is apparent from the record that appellee is the prior user of the term “Shanghai,” and that the goods of the parties possess the same descriptive properties. Although it is contemplated by counsel for appellant that the geographical term “Shanghai” is used on appellee’s labels in such manner as to lead the public to believe that appellee’s goods are produced in Shanghai, that Shanghai is one of the various addresses of appellee, or that appellee’s products are popular in Shanghai, we find nothing on. appellee’s labels of record to support those contentions. It is argued by counsel for apéllant that the word “Shanghai” is a geographical term and, therefore, is not susceptible of exclusive ownership by appellee. The right of appellee to oppose the registration of appellant’s mark does not depend upon the exclusive ownership by appellee of its trade-mark “Shanghai.” It is only necessary that appellee establish that it would probably be damaged by the registration of appellant’s mark. California Cyanide Co. v. American Cyanamid Co., 17 C. C. P. A. (Patents) 1198, 40 F. (2d) 1003; Trustees for Arch Preserver Shoe Patents v. James McCreery & Co., 18 C. C. P. A. (Patents) 1507, 49 F. (2d) 1068; Helzberg v. Katz & Ogush, Inc., 22 C. C. P. A. (Patents) 768, 73 F. (2d) 626; The Pep Boys, Manny, Moe and Jack v. The Fisher Brothers Company (cross appeals), 25 C. C. P. A. (Patents) 818, 94, F. (2d) 204. Accordingly, the only remaining issue to be determined is whether the marks in question, when used concurrently by the parties on their respective goods, would be likely to cause confusion or mistake in the mind of the public or deceive purchasers. In considering that issue and the" }, { "docid": "22295281", "title": "", "text": "margarine, are foods which are usually sold in the same stores and which are similar in nature. Both are commonly used as ingredients in sandwich spreads. We are of the opinion that the use of closely similar marks, such as “Nu Made” and “Nu-Maid” on mayonnaise and margarine, respectively, might well lead the public to suppose that the merchandise emanated from the same source, and thus result in confusion. The record indicates that there has been concurrent use by the parties of their respective marks for a long period, and there is no evidence of actual confusion. However, there is no clear showing as to the extent to which the goods were sold in the same localities. It is well settled that evidence of actual confusion is not necessary to show that likelihood of confusion exists. Norris, Inc. v. Charms Co., 27 C. C. P. A. (Patents) 1174, 111 F. 2d 479, 45 USPQ 442. Under the circumstances of this case, and in view of the close similarity between the marks involved, we are of the opinion that the lack of evidence of actual confusion does not establish that confusion would not be likely to occur from the concurrent use of those marks. In holding that appellant’s failure to object to appellee’s use of its trademark “Nu-Maid” was fatal to its right to oppose registration of that mark, the Assistant Commissioner said: Since a registration is recognition of the applicant’s right to use its mark, and since opposer’s assent to applicant’s use is clearly apparent from the record, this opposer’s acquiescence has created an estoppel against any right it may once have had to prevent applicant’s registration from issuing. It is true that a registration on the principal register is recognition of the registrant’s right to use its mark, but it is substantially more than that. Section 7 (b) of the Trade-Mark Act of 1946 provides that a certificate of registration on the principal register “shall be prima facie evidence of the validity of the registration, registrant’s ownership of the mark, and of registrant’s exclusive right to use the mark" }, { "docid": "14819736", "title": "", "text": "ownership by appellee. The right of appellee to oppose the registration of appellant’s mark does not depend upon the exclusive ownership by appellee of its trade-mark “Shanghai.” It is only necessary that appellee establish that it would probably be damaged by the registration of appellant’s mark. California Cyanide Co. v. American Cyanamid Co., 17 C. C. P. A. (Patents) 1198, 40 F. (2d) 1003; Trustees for Arch Preserver Shoe Patents v. James McCreery & Co., 18 C. C. P. A. (Patents) 1507, 49 F. (2d) 1068; Helzberg v. Katz & Ogush, Inc., 22 C. C. P. A. (Patents) 768, 73 F. (2d) 626; The Pep Boys, Manny, Moe and Jack v. The Fisher Brothers Company (cross appeals), 25 C. C. P. A. (Patents) 818, 94, F. (2d) 204. Accordingly, the only remaining issue to be determined is whether the marks in question, when used concurrently by the parties on their respective goods, would be likely to cause confusion or mistake in the mind of the public or deceive purchasers. In considering that issue and the right of appellant to register its mark, it should be understood that it is not of vital importance that appellant in its application for registration has disclaimed the term “Shanghai” apart from its mark as shown. Walgreen Co. v. Godefroy Manufacturing Co., 19 C. C. P. A. (Patents) 1150, 58 F. (2d) 457; Gillette v. Gillette Safety Razor Co., 20 C. C. P. A. (Patents) 1177, 65 F. (2d) 266; Helzberg v. Katz & Ogush, Inc., supra. We have given careful consideration to the arguments presented here by counsel for appellant that considering the marks as a whole they are not confusingly similar. However, we are not persuaded that counsel is right in his contentions. On the contrary, we are of opinion that those of the purchasing public who are familiar with appellee’s mark “Shanghai” might readily believe that appellant’s goods sold under the trade-mark “Night in Shanghai” were produced by appellee, and that the concurrent use by the parties of their marks on,their respective goods would be likely to cause confusion or mistake in" }, { "docid": "19034750", "title": "", "text": "65 USPQ 255. He stated that even if the new registration of appellant were entitled to consideration, it would not warrant any material modification of his final decision for the reason that the significance of the term “Rite” involved a question of fact which in no way could be affected by the existence of any registered mark which included that term. In dismissing the notice of opposition, the examiner stated that the prefix “RITE,” appearing in the marks of both parties would ordinarily have the same meaning as the word “write,” and because of such meaning the term “Rite” is descriptive, and therefore not subject to exclusive appropriation by any dealer in goods similar to those of the parties. In that connection, among others, he cited the case of Chicago Pneumatic Tool Co. v. The Black & Decker Manufacturing Co., 17 C. C. P. A. (Patents) 962, 39 F. (2d) 684, 5 U. S. Pat. Q. 424. He further stated that it seemed probable to him that the mark of appellant as a whole would be understood to possess the meaning of “Write Right” He noted that the only feature of identity between the marks of the parties was the term “Rite,” and that the second syllable of the mark of appellee, “Craft,” is arbitrary, and that that portion of the mark would be principally relied upon by the purchasing public to identify appellee’s goods. Because the examiner held the first syllable of appellee’s mark, “Rite,” to be descriptive, he adjudged the mark sought to be registered would only be entitled to registration when a disclaimer of that term had been filed. Within four days after the date of the examiner’s decision, such disclaimer was filed and the question of its sufficiency was deferred for consideration by the Examiner of Trade-Marks in the event that appellee finally prevailed. He held that the marks may be concurrently used by the parties without likelihood of confusion in trade, citing Miles Laboratories, Inc. v. Foley & Company, 32 C. C. P. A. (Patents) 714, 144 F. (2d) 888, 63 USPQ 64; Philip A." }, { "docid": "17825271", "title": "", "text": "civil action, if free of error, would be determinative of the factual issues ’involved herein. That is, the marks involved, as well as the material facts and. exhibits, are substantially the same. We turn to the question, one of law, of the nature of an action to cancel a Supplemental Register registration. Such an action is specifically-governed by section 24, Trademark Act of 1946 (16 USC 1092) which gives any person who “believes that he is or will be damaged by the registration of a mark on this [supplemental] register,” the right to apply to the Commissioner to cancel such registration. The quoted language is substantially indentical to that which appears in section 14 of the Trademark Act of 1946 (15 USC 1064), which applies to cancellation of Principal Register registrations. Appellant does not controvert the proposition that prior use of a name which is not technically a trademark may be sufficient to show probable damage under section 14 of the Act so as to enable such prior user to successfully cancel a Principal Register registration. California Piece Dye Works v. California Hand Print, Inc., 34 CCPA 907, 159 F. 2d 871, 72 USPQ 505. In Bellbrook Dairies, Inc. v. Bowman Dairy Company, 47 CCPA 761, 273 F. 2d 620, 124 USPQ 316, a case dealing with a petition for cancellation from the Supplemental Register, this court said: As a prerequisite to the prosecution of this action, section 24 requires that 'the petitioner believes’ “that he is or will be damaged by the registration of a mark on this register ⅜ ⅝ ⅜.” The matter was considered by the court in the “VITA-SLIM” case and we agree with its holding in this connection wherein it was said, “Likelihood of confusion affords sufficient evidence of probable damage, even though the opposer may not have used its mark as a technical trademark.” See also Clairol, Incorporated v. Roux Distributing Co., 47 CCPA 1165, 280 F. 2d 863, 126 USPQ 397, and Cummins Engine Co. v. Continental Motors Corp., 53 CCPA 1167, 359 F. 2d 892, 149 USPQ 559, wherein petitions to cancel" }, { "docid": "21630007", "title": "", "text": "hold, for the reason hereinbefore stated, that appellant’s mark is not registerable under the provisions of said section 5. Appellant contends that, even though the two marks so closely resemble each other as to be likely to cause confusion in the mind of the public, appellee has not established facts from which damage may be inferred, and therefore the opposition should be dismissed. We have repeatedly held that, in a trademark opposition proceeding, any question may be disposed of 'relating to the proposed registration that might properly arise in an ex parte ease. California Cyanide Co. v. American Cyanamid Co., 40 F.(2d) 1003, 17 C. C. P. A. 1198; Rose Nerenstone Bookman v. Oakland Chemical Co., 40 F.(2d) 1006, 17 C. C. P. A. 1213. Upon the reeord before us, it is clear that appellant’s mark is not registerable for the reasons hereinbefore stated, regardless of whether appellee would be damaged by the registration of appellant’s mark. The statute itself forbids registration of a mark which so nearly resembles a registered mark owned and in use by another, and appropriated to merchandise of the same descriptive properties, as to be likely to cause confusion or mistake in the mind of the public, or to deceive purchasers. There remains but one other question requiring comment. Appellant charges appellee with unclean hands in the adoption of its mark. It is sufficient to say that this issue is not raised by appellant’s answer to the notice of opposition, and even had it been so raised, the rule is well settled that the validity of appellee’s registered trade-mark will not be considered in a proceeding of this character. Revere Sugar Refinery v. Joseph C. Salvato, 48 F.(2d) 400, 18 C. C. P. A.-, and cases cited. The decision of the Commissioner of Patents, adjudging that appellant is not entitled to the registration for which it has applied, is affirmed. Affirmed." }, { "docid": "21630006", "title": "", "text": "H. ‘Babe’ Ruth” is not registerable under the facts in-this case because barred by the first proviso of said section 5 (15 USCA § 85). That confusion is likely between appellee’s mark, “Baby Ruth,” and appellant’s mark, “Ruth’s Home Run, George H. ‘Babe’ Ruth,” is apparent. It is clear from the testimony that the connection of George H. Ruth with appellant was for the purpose of capitalizing his nickname “Babe” Ruth, used upon candy. Assuming that he is a bona fide stockholder and officer of appellant company, the manner in which the mark was used, as shown by the labels, indicates that the words “Babe Ruth” constitute the part of the mark relied upon by appellant. Moreover, the testimony establishes actual confusion between the marks, and under the doctrine declared in Williams v. Williams, supra, we must hold that appellant’s mark is not registerable. We would emphasize the fact that the proceeding before us is statutory, and the question of whether appellant has the right to use said mark is not before us. We simply hold, for the reason hereinbefore stated, that appellant’s mark is not registerable under the provisions of said section 5. Appellant contends that, even though the two marks so closely resemble each other as to be likely to cause confusion in the mind of the public, appellee has not established facts from which damage may be inferred, and therefore the opposition should be dismissed. We have repeatedly held that, in a trademark opposition proceeding, any question may be disposed of 'relating to the proposed registration that might properly arise in an ex parte ease. California Cyanide Co. v. American Cyanamid Co., 40 F.(2d) 1003, 17 C. C. P. A. 1198; Rose Nerenstone Bookman v. Oakland Chemical Co., 40 F.(2d) 1006, 17 C. C. P. A. 1213. Upon the reeord before us, it is clear that appellant’s mark is not registerable for the reasons hereinbefore stated, regardless of whether appellee would be damaged by the registration of appellant’s mark. The statute itself forbids registration of a mark which so nearly resembles a registered mark owned and in" }, { "docid": "22295282", "title": "", "text": "the opinion that the lack of evidence of actual confusion does not establish that confusion would not be likely to occur from the concurrent use of those marks. In holding that appellant’s failure to object to appellee’s use of its trademark “Nu-Maid” was fatal to its right to oppose registration of that mark, the Assistant Commissioner said: Since a registration is recognition of the applicant’s right to use its mark, and since opposer’s assent to applicant’s use is clearly apparent from the record, this opposer’s acquiescence has created an estoppel against any right it may once have had to prevent applicant’s registration from issuing. It is true that a registration on the principal register is recognition of the registrant’s right to use its mark, but it is substantially more than that. Section 7 (b) of the Trade-Mark Act of 1946 provides that a certificate of registration on the principal register “shall be prima facie evidence of the validity of the registration, registrant’s ownership of the mark, and of registrant’s exclusive right to use the mark in commerce in connection with the goods or services specified in the certificate, subject to any conditions and limitations stated therein.” The distinction between the right to use a trademark and the statutory right to register it has been repeatedly recognized by this court. Alumatone Corp. v. Vita-Var Corp., 37 C. C. P. A. (Patents) 1151, 183 F. 2d 612, 86 USPQ 359; Willson et al. v. Graphol Products Co., Inc., 38 C. C. P. A. (Patents) 1030, 188 F. 2d 498, 89 USPQ 382, and cases there cited. Assuming, as was found by the Assistant Commissioner, but without holding here, that appellant must be presumed to have known of appellee’s use of the mark for a substantial period of time before taking any action with respect to it, such conduct at most could involve acquiescence only with respect to appellee’s right to use the mark. Appellant was clearly under no duty to attack appellee’s right to use the mark if it did not choose to do so, on penalty of being deprived of the" }, { "docid": "12396750", "title": "", "text": "should be denied, regardless of the issues raised by the notice of opposition. * * * and we here reaffirm that doctrine. In our opinion, “It was not only the right but the duty of the tribunals of the Patent Office to determine, ex pariey and without reference to issues raised by the notice of opposition, whether the mark was entitled to registration.” Sparklets Corp. v. Walter Kidde Sales Co., 26 C. C. P. A. (Patents) 1342, 1345, 104 F. (2d) 396. 399, 42 U. S. P. Q. 73, 76. That was done by the Examiner of Interferences in this case, and it can make no difference who is the owner of the'prior registrations. The determination of the right of the applicant to register its mark is not to be limited to the issues raised by the notice of opposition. Appellee contends that since the registered mark “Dubonnet” is owned by the opposer but is used by another it cannot be considered as a mark “owned and in use by another,” under the confusion-in-trade clause of section 5 of the Trade-mark Act of 1905 (as amended), so as to bar registration of the mark “Bourbonet.” We must not lose sight of the fact that the dominant purpose of the said clause is to protect the purchasing public from confusion and mistake. Sun-Maid Raisin Growers of California v. American Grocer Co., 17 C. C. P. A. (Patents) 1034, 40 F. (2d) 116, 5 U. S. P. Q. 68; California Packing Corp. v. Tillman & Bendel, Inc., 17 C. C. P. A. (Patents) 1048, 40 F. (2d) 108, 5 U. S. P. Q,. 59; Skelly Oil Co. v. The Powerine Co., 24 C. C. P. A. (Patents) 790, 86 F. (2d) 752, 32 U. S. P. Q. 51. “It F Congress] never intended that a trade-mark should be registered if its use was likely to cause confusion or mistake in the mind of the public or if purchasers were likely to be deceived by its use.” Sun-Maid Raisin Growers of Calif. v. American Grocer Co., supra. The marks here are deceptively similar" }, { "docid": "19060582", "title": "", "text": "5 of the Trade-Mark Act of 1905, as amended, reads: Sec. 5. [15 U. S. O. 85] That no mark by which the goods of the owner of the mark may be distinguished from other goods of the same class shall he refused registration as a trade-mark on account of the nature of such mark unless such mark— (6) * * ⅜: Provided, That trade-marks which are identical with a registered or known trade-mark owned and in use by another and appropriated to merchandise of the same descriptive properties, or which so nearly resemble a registered or known trade-mark owned and in use by another and appropriated to merchandise of the same descriptive properties as to be likely to cause confusion or mistake in the mind of the public or to deceive purchasers shall not be registered: ⅜ * * Tlie stipulated facts clearly show that opposer (appellant) has used the marks referred to long prior to any use claimed by applicant for its mark; that the goods shown in the registrations are of the same descriptive properties; and that the opposer has used its marks on other similar merchandise, including work caps. Appellant contends that the word “Flexi” in appellee’s mark “Flexi-Crown” is descriptive and that appellee’s application should have been denied. Section 6 of the Trade-Mark Act of 1905, as amended [15 U. S. C. 86], provides that: “Any person who believes he would be damaged by the registration of a mark may oppose the same by filing notice of opposition, stating the grounds therefor, in the\" Patent Office within thirty days after the publication of the mark sought to be registered, * * It -was not set forth as a ground of opposition in appellant’s notice of opposition that the word “Flexi” is descriptive, nor was its claimed descriptive character referred to therein either directly or indirectly. That question, therefore, is not before us for consideration here. Hygrade Sylvania Corp. v. Sontag Chain Stores Co., Ltd., 29 C. C. P. A. (Patents) 199, 125 F. (2d) 389, 52 USPQ 349. The sole question presented here for decision" } ]

[ { "docid": "22399463", "title": "", "text": "prior conviction was a felony under applicable state law and was punishable under the Controlled Substances Act, the court held that § 2L1.2(b)(2) applied. Id. We agree with the reasoning of the First Circuit in Restrepo-Aguilar and of the four other circuits that have considered this issue. See, e.g., United States v. Briones-Mata, 116 F.3d 308, 310 (8th Cir.1997) (‘We believe the definitions of the terms at issue indicate that Congress made a deliberate policy decision to include as an ‘aggravated felony’ a drug crime that is a felony under state law but only a misdemeanor under the [Controlled Substances Act].”); United States v. Garcia-Olmedo, 112 F.3d 399, 400-01 (9th Cir.1997) (holding that prior Arizona felony convictions for possession of marijuana that also would have' been punishable under 21 U.S.C. § 844(a) constituted aggravated felonies under § 2L1.2(b)(2)); United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir.) (holding that a prior New York felony conviction for possession of cocaine that also would have been punishable under 21 U.S.C. § 844(a) constituted an aggravated felony under § 2L1.2(b)(2)), cert. denied, — U.S. -, 117 S.Ct. 218, 136 L.Ed.2d 151 (1996); United States v. Polanco, 29 F.3d 35, 38 (2d Cir.1994) (“Because Polanco’s [New York] felony conviction was for an offense punishable under the Controlled Substances Act, one of the statutes enumerated under section 924(c)(2), the offense rises to the level of ‘aggravated felony under section 2L1.2(b)(2) and 8 U.S.C. § 1326(b)(2) regardless of the quantity or nature of the contraband or the severity of the sentence imposed.”). Thus, Hinojosa-Lopez’s prior conviction constitutes an aggravated felony for purposes of § 2L1.2(b)(2) if (1) the offense was punishable under the Controlled Substances Act and (2) it was a felony. Simple possession of marijuana is punishable under the Controlled Substances Act, albeit as a misdemeanor. 21 U.S.C. § 844(a) (1994). The statute under which Hinojosa-Lopez was convicted in 1991 was the Texas Controlled Substances Act, Tex. Health & Safety Code Ann. § 481.121 (Vernon 1992), which states that the knowing or intentional possession of more than fifty but less than two hundred pounds" } ]

[ { "docid": "23535861", "title": "", "text": "30 (quotation from the decision of the IJ on the merits of Wilson’s section 212(c) application). In short, as the IJ recognized, Wilson demonstrated none of the “unusual or outstanding” favorable equities that would make him likely to receive a section 212(c) waiver. Because he points to no evidence that would indicate otherwise, other than his attorney’s optimistic fifty-fifty projection, Wilson has failed to demonstrate a reasonable likelihood that but for the alleged error, he would not have been deported. III. Wilson also challenges the enhancement of his sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(C). The guideline provides for an 8 level enhancement for illegal reentry when the defendant was previously deported after “a conviction for an aggra vated felony.” U.S.S.G. § 2L1.2(b)(l)(C). We review the district court’s imposition of the sentence enhancement de novo because it entails the interpretation of a statute. See United States v. Campbell, 94 F.3d 125, 127 (4th Cir.1996). The issue presented is whether a state conviction for possession of an unknown quantity of cocaine can ultimately qualify as an aggravated felony under section 2L1.2 if it is a felony under the applicable state law but is punishable only as a misdemeanor under the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq. This is a question of first impression in this circuit. The district court concluded that simple possession of drugs, if a felony under state law, can constitute an aggravated felony. J.A. 116-17. We agree, and thereby join the seven other circuits that have addressed the issue. See United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir.2000); United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir.1999); United States v. Simon, 168 F.3d 1271 (11th Cir.1999); United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir.1997); United States v. Briones-Mata, 116 F.3d 308 (8th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998 (10th Cir.1996); United States v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir.1996). Our analysis begins with the guideline itself. The term “aggravated felony” is not defined in the text of section 2L1.2. However, the application note for that subsection states that “ ‘aggravated felony’" }, { "docid": "18950200", "title": "", "text": "2004 state offense), virtually all drug offenses are grounds for removal under 8 U. S. C. § 1227(a)(2)(B)(i). Since the Court of Appeals issued its decision in this case, CarachuriRosendo has been removed. Brief for Respondent 10-11. Neither party, however, has suggested that this case is now moot. If Carachuri-Rosendo was not convicted of an “aggravated felony,” and if he continues to satisfy the requirements of 8 U. S. C. § 1229b(a), he may still seek cancellation of removal even after having been removed. See § 1229b(a) (“The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable horn the United States if the alien” meets several criteria). Compare 570 F. 3d 263 (CA5 2009) (holding state conviction for simple possession after prior conviction for simple possession is a felony under the Controlled Substances Act and thus an aggravated felony) and Fernandez v. Mukasey, 544 P. 3d 862 (CA7 2008) (same), with Berhe v. Gonzales, 464 F. 3d 74 (CA1 2006) (taking contrary view), Alsol v. Mukasey, 548 F. 3d 207 (CA2 2008) (same), Gerbier v. Holmes, 280 F. 3d 297 (CA3 2002) (same), and Rashid v. Mukasey, 531 F. 3d 438 (CA6 2008) (same). The Court stated in Lopez that \"recidivist possession, see 21 U. S. C. § 844(a), clearly fall[s] within the definitions used by Congress in 8 U. S. C. § 1101(a)(43)(B) and 18 U. S. C. § 924(c)(2), regardless of whether these federal possession felonies or their state counterparts constitute ‘illicit trafficking in a controlled substance’ or ‘drug trafficking’ as those terms are used in ordinary speech.” 549 U. S., at 55, n. 6. Our decision today is not in conflict with this footnote; it is still true that recidivist simple possession offenses charged and prosecuted as such “clearly fall” within the definition of an aggravated felony. What we had no occasion to decide in Lopez, and what we now address, is what it means to be convicted of an aggravated felony. Lopez teaches us that it is necessary that the conduct punished under state law correspond to a felony" }, { "docid": "7996999", "title": "", "text": "155 L.Ed.2d 871 (2003); United States v. Ibarra-Galindo, 206 F.3d 1337, 1339-41 (9th Cir.2000), cert. denied, 531 U.S. 1102, 121 S.Ct. 837, 148 L.Ed.2d 718 (2001); United States v. Pornes-Garcia, 171 F.3d 142, 145-48 (2d Cir.), cert. denied, 528 U.S. 880, 120 S.Ct. 191, 145 L.Ed.2d 161 (1999); United States v. Simon, 168 F.3d 1271, 1272 (11th Cir.), cert. denied 528 U.S. 844, 120 S.Ct. 114, 145 L.Ed.2d 97 (1999); United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir.1997); United States v. Briones-Mata, 116 F.3d 308, 309-10 (8th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998, 999-1000 (10th Cir.), cert. denied, 519 U.S. 885, 117 S.Ct. 218, 136 L.Ed.2d 151 (1996); United States v. Restrepo-Aguilar, 74 F.3d 361, 363-66 (1st Cir.1996). I would be cautious about rocking a boat as stable as this one seems to be. I think the stability is more apparent than real, however, given that (1) the proper interpretation of “a conviction for an aggravated felony” depends on what Congress said in 18 U.S.C. § 924(c)(2), a code section that speaks of “any felony punishable under the Controlled Substances Act [etc.],” and (2) two of the eight circuits mentioned above have held in immigration cases that the language in § 924(c)(2) about “any felony punishable under the Controlled Substances Act” means, for immigration law purposes, punishable under the Controlled Substances Act as a felony — which is not the meaning those circuits assign to the same language in the same statute for sentencing law purposes. Compare Aguirre v. INS, 79 F.3d 315, 317-18 (2d Cir.1996), with Pornes-Garcia, and Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 919 (9th Cir.2004), with Ibarra-Galindo. I agree with my colleagues on the panel that the Second and Ninth Circuits have some explaining to do in this regard. (There is no corresponding tension in the Third Circuit caselaw, since Gerbier v. Holmes, 280 F.3d 297 (3rd Cir.2002) — an immigration case reaching the same result as that reached in Aguirre and Cazarez-Gutier- rez — stands alone in the Third Circuit; there is no Third Circuit sentencing case corresponding to the eight cases" }, { "docid": "22176620", "title": "", "text": "definition used in the guideline at issue.” 316 F.3d at 513 n. 4 (citing U.S. Sentencing Guidelines Manual 2L1.2, cmt. n.l(B)(iv)(2001)). The application note the Court was referring to defines “felony” as “any federal, state, or local offense punishable by imprisonment for a term exceeding one year.” However, that application note expressly states the definition of “felony” “[f|or purposes of subsection (b)(1)(A), (B), and (D).” A different application note states the definition of “aggravated felony” “[f]or purposes of subsection (b)(1)(C).” As Amaya-Portillo points out, this commentary to section 2L1.2 makes potential punishment the appropriate measure for all purposes except determining whether a prior offense constitutes an “aggravated felony.” See U.S. Sentencing Guidelines Manual 2L1.2, cmt. n.2, 3(A). That the Sentencing Commission did not make potential punishment the appropriate measure for determining whether a prior offense constitutes an “aggravated felony,” but did so for determining whether a prior offense constitutes a “felony,” indicates that the Sentencing Commission did not intend for potential punishment to be the appropriate measure for determining whether a prior offense constitutes an “aggravated felony.” Finally, the Court’s decision in Wilson followed cases from seven other circuits, each of which conducted the “aggravated felony” inquiry by focusing upon the “classification” of an offense under state law rather than upon potential punishment. Wilson, 316 F.3d at 512 (citing United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir.2000) ; United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir.1999); United States v. Simon, 168 F.3d 1271 (11th Cir.1999); United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir.1997); United States v. Briones-Mata, 116 F.3d 308 (8th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998 (10th Cir.1996); United States v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir.1996)). In each of those cases, the defendants had committed offenses that were felonies under state law, but not federal law. Nevertheless, the courts of appeals concluded that the defendants had committed “felonies” for purposes of 21 U.S.C. 802(13), and section 2L1.2 of the Sentencing Guidelines. No court of appeals has squarely addressed the issue presented in this case: whether an offense is a “felony” for purposes of" }, { "docid": "22712406", "title": "", "text": "by pursuing his application for cancellation of removal, which the Immigration Judge refused to consider after determining that Lopez had committed an aggravated felony. Compare United States v. Wilson, 316 F. 3d 506 (CA4 2003) (state-law felony is an aggravated felony); United States v. Simon, 168 F. 3d 1271 (CA11 1999) (same); United States v. Hinojosa-Lopez, 130 F. 3d 691 (CA5 1997) (same); United States v. Briones-Mata, 116 F. 3d 308 (CA8 1997) (per curiam) (same); United States v. Cabrera-Sosa, 81 F. 3d 998 (CA10 1996) (same); United States v. Restrepo-Aguilar, 74 F. 3d 361 (CA1 1996) (same), with Gonzales-Gomez v. Achim, 441 F. 3d 532 (CA7 2006) (state-law felony is not an aggravated felony); United States v. Palacios-Suarez, 418 F. 3d 692 (CA6 2005) (same); Gerbier v. Holmes, 280 F. 3d 297 (CA3 2002) (same). Two Circuits have construed the aggravated felony definition one way in the sentencing context and another in the immigration context. Compare United States v. Ibarra-Galindo, 206 F. 3d 1337 (CA9 2000) (in sentencing case, state-law felony is an aggravated felony); United States v. Pornes-Garcia, 171 F. 3d 142 (CA2 1999) (same), with Cazarez-Gutierrez v. Ashcroft, 382 F. 3d 905 (CA9 2004) (in immigration case, state-law felony is not an aggravated felony); Aguirre v. INS, 79 F. 3d 315 (CA2 1996) (same). Several States punish possession as a felony. See, e. g., S. D. Codified Laws §§22-42-5 (2004), 22-6-1 (2005 Supp.); Tex. Health & Safety Code Aim. §481.115 (West 2003); Tex. Penal Code Ann. §§12.32-12.35 (West 2003); see also n. 10, infra. In contrast, with a few exceptions, the CSA punishes drug possession offenses as misdemeanors (that is, by one year’s imprisonment or less, cf. 18 U. S. C. § 3559(a)), see 21 U. S. C. § 844(a) (providing for “a term of imprisonment of not more than 1 year” for possession offenses except for repeat offenders, persons who possess more than five grams of cocaine base, and persons who possess flunitrazepam), and trafficking offenses as felonies, see §841 (2000 ed. and Supp. III). L. Carroll, Alice in Wonderland and Through the Looking Glass 198" }, { "docid": "7996998", "title": "", "text": "a provision of federal criminal law that is referenced in the Immigration and Nationality Act.” Id. The BIA thus adopted the \"guideline approach” for all of its immigration cases except in circuits such as the Second, Third, and Ninth which have spoken to the contrary and have adopted the BIA's original \"hypothetical federal felony” interpretation. The BIA’s decision to reverse its prior holding based on its obligation to follow the authoritative decisions of our sister circuit courts does not alter our analysis of the BIA's statutory interpretation. DAVID A. NELSON, Circuit Judge, concurring. No fewer than eight of our sister circuits have addressed the precise question presented in the case at bar. All eight have concluded that the term “a conviction for an aggravated felony,” as used in U.S.S.G. § 2L1.2, includes a felony conviction in a state court for a drug offense that would be punishable only as a misdemeanor under the relevant federal statute. See United States v. Wilson, 316 F.3d 506, 512-13 (4th Cir.), cert. denied, 538 U.S. 1025, 123 S.Ct. 1959, 155 L.Ed.2d 871 (2003); United States v. Ibarra-Galindo, 206 F.3d 1337, 1339-41 (9th Cir.2000), cert. denied, 531 U.S. 1102, 121 S.Ct. 837, 148 L.Ed.2d 718 (2001); United States v. Pornes-Garcia, 171 F.3d 142, 145-48 (2d Cir.), cert. denied, 528 U.S. 880, 120 S.Ct. 191, 145 L.Ed.2d 161 (1999); United States v. Simon, 168 F.3d 1271, 1272 (11th Cir.), cert. denied 528 U.S. 844, 120 S.Ct. 114, 145 L.Ed.2d 97 (1999); United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir.1997); United States v. Briones-Mata, 116 F.3d 308, 309-10 (8th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998, 999-1000 (10th Cir.), cert. denied, 519 U.S. 885, 117 S.Ct. 218, 136 L.Ed.2d 151 (1996); United States v. Restrepo-Aguilar, 74 F.3d 361, 363-66 (1st Cir.1996). I would be cautious about rocking a boat as stable as this one seems to be. I think the stability is more apparent than real, however, given that (1) the proper interpretation of “a conviction for an aggravated felony” depends on what Congress said in 18 U.S.C. § 924(c)(2), a code section that" }, { "docid": "23108351", "title": "", "text": "felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.)....” 18 U.S.C. § 924(c)(2)(emphasis added). In United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir.1997), we interpreted this definition from section 924(c) to mean that a state drug conviction is a “drug trafficking crime” (and thus an aggravated felony) if “(1) the offense was punishable- under the Controlled Substances Act'and (2) it was a felony” under either state or federal law. Five other circuits have reached the same conclusion. See United States v. Restrepo-Aguilar, 74 F.3d 361, 364-66 (1st Cir.1996); United States v. Polanco, 29 F.3d 35, 38 (2d Cir.1994); United States v. Briones-Mata, 116 F.3d 308, 309 (8th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir.1996); United States v. Simon, 168 F.3d 1271, 1272 (11th Cir.1999); see also Steele v. Blackman, 236 F.3d 130, 136 & n. 5 (3d Cir.2001)(dicta). Applying Hinojosa-Lopez to the facts of this case, we conclude that Hernandez’s Colorado drug conviction is a “drug trafficking crime” and, therefore, an “aggravated felony” within the meaning of the applicable statutes because (1) Hernandez’s heroin possession offense is clearly punishable under the Controlled Substances Act, see 21 U.S.C. § 844(a); 21 U.S.C. § 812(c), Schedule I(b)(10); and (2) as noted above, possession of heroin is a class three felony under Colorado law. In sum, based on our interpretation of the relevant statutes, we believe Congress intended that state drug convictions such as Hernandez’s be included in the definition of “aggravated felony” and that aliens in Hernandez’s situation be expeditiously removed pursuant to section 1228. Therefore, we cannot say that Hernandez’s removal through expedited administrative proceedings constitutes “a denial of justice” or was otherwise unfair. C Hernandez, however, has raised two arguments that must be addressed. First, Hernandez suggests that the fundamental unfairness arose when the INS agents failed to follow Board of Immigration Appeals (“BIA”) precedents interpreting the “aggravated felony” statutes. The BIA has interpreted the relevant language from section 924(e) — “any felony punishable under the Controlled Substances Act” — to mean that a drug offense must be punishable as" }, { "docid": "3540117", "title": "", "text": "Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977); see Gerbier v. Holmes, supra, 280 F.3d at 312. The only consistency that we can see in the government’s treatment of the meaning of “aggravated felony” is that the alien always loses. Recall that one of the offenses that constitute aggravated felonies for purposes of the immigration statute is “sexual abuse of a minor.” The government’s position, which we and other courts have endorsed, is that whether a particular offense constitutes “sexual abuse of a minor” for purposes of classification as an aggravated felony is a matter of federal law rather than state law. Gattem v. Gonzales, 412 F.3d 758, 765 (7th Cir.2005); Lara-Ruiz v. INS, 241 F.3d 934, 940-42 (7th Cir.2001); Parrilla v. Gonzales, 414 F.3d 1038, 1040-42 (9th Cir.2005); Bahar v. Ashcroft, 264 F.3d 1309, 1311-12 (11th Cir.2001); Mugalli v. Ashcroft, 258 F.3d 52, 56-60 (2d Cir.2001); Emile v. INS, 244 F.3d 183, 185-86 (1st Cir.2001). Even if the state has decided that a particular form of such abuse is a misdemeanor, the immigration authorities can redefine it as a felony, indeed as an aggravated felony. Such redefinition serves the interest in national uniformity of the standards for removability by forbidding states to decide, by their classification of a crime as a misdemeanor or a felony, who shall be removable. This case is the mirror image. If states cannot be permitted by exercising unusual leniency to spare criminals from banishment, neither should they be permitted by unusual severity to condemn criminals to banishment. We are mindful of cases that hold that when used to enhance a sentence the Controlled Substances Act does not require a finding that the state felony could have been punished as a (federal) felony under the Act. United States v. Ibarra-Galindo, 206 F.3d 1337, 1339-40 (9th Cir.2000); United States v. Restrepo-Aguilar, 74 F.3d 361, 364-65 (1st Cir.1996). As noted in United States v. Palacios-Suarez, 418 F.3d 692, 698-99 (6th Cir.2005), these decisions are based on a since-superseded sentencing guideline, and their current validity is in doubt. But even if they" }, { "docid": "22120447", "title": "", "text": "Guidelines previously defined aggravated felony with reference to the INA, 8 U.S.C. § 1101(a)(43), which in turn incorporated the definition of drug trafficking crime under 18 U.S.C. § 924(c). See United States v. Ballesteros-Ruiz, 319 F.3d 1101, 1103 (9th Cir.2003). As noted above, a drug trafficking crime includes any felony punishable under the CSA and two other federal drug laws. 18 U.S.C. § 924(c)(2). Hinojosa-Lopez concluded that “drug trafficking crime” includes any state offense that is (1) punishable under the CSA and (2) a felony, relying on the text of the definition of drug trafficking crime, the decisions of other federal courts of appeals, and commentary in the Sentencing Guidelines. 130 F.3d at 693-94. In the sentencing context, this Court and all other federal courts of appeals that interpreted “drug trafficking crime” have used similar reasoning and have adopted similar definitions of drug trafficking crime, encompassing any offense that is both punishable under the CSA and prosecuted as a felony. See, e.g., United States v. Ibarra-Galindo, 206 F.3d 1337, 1339 (9th Cir.2000); United States v. Simon, 168 F.3d 1271, 1272 (11th Cir.1999); United States v. Briones-Mata, 116 F.3d 308, 309 (8th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir.1996); United States v. Restrepo-Aguilar, 74 F.3d 361, 364 (1st Cir.1996); United States v. Polanco, 29 F.3d 35, 38 (2d Cir.1994). The Hemandez-Avalos Court questioned “the validity of interpreting this statute differently based on th[e] distinction between sentencing and immigration cases” or “the perceived need for a uniform, substantive standard ... in the deportation context.” 251 F.3d at 509. It did not apply the presumption that immigration law should be nationally uniform, concluding that the “argument for uniformity is not altogether persuasive inasmuch as it creates a dichotomy — not uniformity — between the BIA’s application of section 924(c) in removal proceedings and the federal courts’ application of section 924(c) in sentencing proceedings.” 251 F.3d at 509. Furthermore, Hemandez-Avalos did not address any other differences between the two statutory schemes that might make the reasoning of the sentencing cases inapplicable in the immigration context. c. The BIA’s interpretation Emphasizing" }, { "docid": "22120448", "title": "", "text": "Simon, 168 F.3d 1271, 1272 (11th Cir.1999); United States v. Briones-Mata, 116 F.3d 308, 309 (8th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir.1996); United States v. Restrepo-Aguilar, 74 F.3d 361, 364 (1st Cir.1996); United States v. Polanco, 29 F.3d 35, 38 (2d Cir.1994). The Hemandez-Avalos Court questioned “the validity of interpreting this statute differently based on th[e] distinction between sentencing and immigration cases” or “the perceived need for a uniform, substantive standard ... in the deportation context.” 251 F.3d at 509. It did not apply the presumption that immigration law should be nationally uniform, concluding that the “argument for uniformity is not altogether persuasive inasmuch as it creates a dichotomy — not uniformity — between the BIA’s application of section 924(c) in removal proceedings and the federal courts’ application of section 924(c) in sentencing proceedings.” 251 F.3d at 509. Furthermore, Hemandez-Avalos did not address any other differences between the two statutory schemes that might make the reasoning of the sentencing cases inapplicable in the immigration context. c. The BIA’s interpretation Emphasizing the need for nationally uniform immigration law, the BIA initially and for a long period interpreted “aggravated felony” for immigration purposes to include state drug offenses only if they would be punishable as felonies under federal drug laws or the offenses include a trafficking element. Matter of K-V-D-, 22 I & N Dec. 1163, 1999 WL 1186808 (BIA 1999); Matter of L-G-, 21 I & N Dec. 89, 1995 WL 582051 (BIA 1995); Matter of Davis, 20 I & N Dec. 536, 1992 WL 443920 (BIA 1992). However, after Hemandez-Avalos, the BIA reversed its longstanding interpretation and now defines aggravated felony as the term is defined in the applicable circuit, adopting the rule used for sentencing enhancement where there is no circuit precedent interpreting drug trafficking crime for immigration purposes. See In re Yanez-Garcia, 23 I & N Dec. 390, 2002 WL 993589 (BIA 2002); but cf. In re Elgendi, 23 I & N Dec. 515, 518-19, 2002 WL 31441996 (BIA 2002) (applying the sentencing enhancement rule in the Second Circuit notwithstanding Aguirre because the" }, { "docid": "7569449", "title": "", "text": "BLACK, Circuit Judge: Appellant Jean Claude Simon appeals his sentence for illegally reentering the United States after deportation, in violation of 8 U.S.C. § 1326(a). Appellant asserts that the district court erred in imposing a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A) (1997). He contends that the term “aggravated felony” as used in that section does not include his prior Florida felony conviction for possessing cocaine. We review the district court’s interpretation of the Sentencing Guidelines de novo. United States v. Bozza, 132 F.3d 659, 661 (11th Cir.1998). Section 2L1.2(b)(l)(A) of the 1997 Sentencing Guidelines provides for a 16-level enhancement if the defendant previously was deported after a conviction for an aggravated felony. U.S.S.G. § 2L1.2(b)(l)(A) (1997). The commentary to Section 2L1.2(b)(l)(A) defines “aggravated felony” as it is defined in 8 U.S.C. § 1101(a)(43), which, in turn, defines “aggravated felony” in Section 1101(a)(43)(B) to include a “drug trafficking crime (as defined in section 924(c) of Title 18).” U.S.S.G. § 2L1.2, comment (n. 1) (1997). Section 924(c) defines the term “drug trafficking crime” to include “any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C.App.1901 et seq.).” 18 U.S.C. § 924(c)(2). We agree with the other circuits that have addressed this question that for a drug offense to come within 18 U.S.C. § 924(c)(2), and hence to fit within the definition of aggravated felony, two criteria must be met: (1) the offense must be punishable under one of the three enumerated statutes, and (2) the offense must be a felony. See United States v. Restrepo-Aguilar, 74 F.3d 361, 364 (1st Cir.1996); United States v. Polanco, 29 F.3d 35, 38 (2d Cir.1994); United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir.1997); United States v. Briones-Mata, 116 F.3d 308, 309-310 (8th Cir.1997); United States v. Garcia-Olmedo, 112 F.3d 399, 400-401 (9th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir.1996). Appellant does not dispute the first criterion. The Controlled Substances Act (CSA) provides that possession of cocaine" }, { "docid": "23108350", "title": "", "text": "which serves as an element of an offense under 8 U.S.C. § 1326, an alien must establish that (1) the prior hearing was fundamentally unfair; (2) the hearing effectively eliminated the alien’s right to seek judicial review of the removal order; and (3) the procedural deficiencies caused the alien actual prejudice. See United States v. Lopez-Vasquez, 227 F.3d 476, 483 (5th Cir.2000)(citing United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987)). B Our analysis begins and ends with the question whether the removal proceeding was fundamentally unfair in the sense that it resulted in “a denial of justice” or of due process of law. Animashaun v. INS, 990 F.2d 234, 238 (5th Cir.1993). The crux of this case is the meaning of “aggravated felony,” which is defined in the Immigration and Nationality Act (“INA”) to include “illicit trafficking in a controlled substance ..., including a drug trafficking crime (as defined in section 924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B). In section 924(c), the term “drug trafficking crime” includes “any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.)....” 18 U.S.C. § 924(c)(2)(emphasis added). In United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir.1997), we interpreted this definition from section 924(c) to mean that a state drug conviction is a “drug trafficking crime” (and thus an aggravated felony) if “(1) the offense was punishable- under the Controlled Substances Act'and (2) it was a felony” under either state or federal law. Five other circuits have reached the same conclusion. See United States v. Restrepo-Aguilar, 74 F.3d 361, 364-66 (1st Cir.1996); United States v. Polanco, 29 F.3d 35, 38 (2d Cir.1994); United States v. Briones-Mata, 116 F.3d 308, 309 (8th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir.1996); United States v. Simon, 168 F.3d 1271, 1272 (11th Cir.1999); see also Steele v. Blackman, 236 F.3d 130, 136 & n. 5 (3d Cir.2001)(dicta). Applying Hinojosa-Lopez to the facts of this case, we conclude that Hernandez’s Colorado drug conviction is a “drug trafficking crime” and, therefore, an “aggravated felony” within the" }, { "docid": "22176621", "title": "", "text": "“aggravated felony.” Finally, the Court’s decision in Wilson followed cases from seven other circuits, each of which conducted the “aggravated felony” inquiry by focusing upon the “classification” of an offense under state law rather than upon potential punishment. Wilson, 316 F.3d at 512 (citing United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir.2000) ; United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir.1999); United States v. Simon, 168 F.3d 1271 (11th Cir.1999); United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir.1997); United States v. Briones-Mata, 116 F.3d 308 (8th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998 (10th Cir.1996); United States v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir.1996)). In each of those cases, the defendants had committed offenses that were felonies under state law, but not federal law. Nevertheless, the courts of appeals concluded that the defendants had committed “felonies” for purposes of 21 U.S.C. 802(13), and section 2L1.2 of the Sentencing Guidelines. No court of appeals has squarely addressed the issue presented in this case: whether an offense is a “felony” for purposes of the CSA and section 2L1.2 if the offense is not labeled a felony under state or federal law. The Ninth Circuit has come close to this issue. In United States v. Robles-Rodriguez, 281 F.3d 900, 904 (9th Cir.2002), the court rejected an interpretation of “felony” to “mean that an offense is a felony under the Controlled Substances Act as long as the convicting jurisdiction labels it as such, without regard to the punishment designated for the offense.” Rather, the court concluded that a “felony” under the Controlled Substances Act describes “offenses punishable by more than one year’s imprisonment under applicable state or federal law.” The court came to this conclusion for three reasons. First, it looked to the CSA’s definition of a “felony drug offense” as “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country.” Id. (citing 21 U.S.C. 802(44)(emphasis in original)). The court reasoned that under the interpretation it rejected, a drug offense could be a felony" }, { "docid": "22712405", "title": "", "text": "do not weigh it as heavily as the anomalies just mentioned on the other side. After all, Congress knows that any resort to state law will implicate some disuniformity in state misdemeanor-felony classifications, but that is no reason to think Congress meant to allow the States to supplant its own classifications when it specifically constructed its immigration law to turn on them. In sum, we hold that a state offense constitutes a “felony punishable under the Controlled Substances Act” only if it proscribes conduct punishable as a felony under that federal law. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. The INS’s immigration-enforcement functions are now handled by the Bureau of Immigration and Customs Enforcement in the Department of Homeland Security. See Clark v. Martinez, 543 U. S. 371, 374, n. 1 (2005). Although the Government has deported Lopez, we agree with the parties that the case is not moot. Lopez can benefit from relief in this Court by pursuing his application for cancellation of removal, which the Immigration Judge refused to consider after determining that Lopez had committed an aggravated felony. Compare United States v. Wilson, 316 F. 3d 506 (CA4 2003) (state-law felony is an aggravated felony); United States v. Simon, 168 F. 3d 1271 (CA11 1999) (same); United States v. Hinojosa-Lopez, 130 F. 3d 691 (CA5 1997) (same); United States v. Briones-Mata, 116 F. 3d 308 (CA8 1997) (per curiam) (same); United States v. Cabrera-Sosa, 81 F. 3d 998 (CA10 1996) (same); United States v. Restrepo-Aguilar, 74 F. 3d 361 (CA1 1996) (same), with Gonzales-Gomez v. Achim, 441 F. 3d 532 (CA7 2006) (state-law felony is not an aggravated felony); United States v. Palacios-Suarez, 418 F. 3d 692 (CA6 2005) (same); Gerbier v. Holmes, 280 F. 3d 297 (CA3 2002) (same). Two Circuits have construed the aggravated felony definition one way in the sentencing context and another in the immigration context. Compare United States v. Ibarra-Galindo, 206 F. 3d 1337 (CA9 2000) (in sentencing case, state-law felony is an aggravated" }, { "docid": "8398922", "title": "", "text": "the sentencing enhancement “regardless of ,the quantity or nature of the contraband or the severity of the sentence imposed.” Id. Under this test, so long as the prior offense conduct is punishable under the Controlled Substances Act, the enhancement applies to a defendant whose prior offense was prosecuted as a state law felony even though it would have resulted in a misdemeanor conviction if prosecuted under federal law. Four other courts of appeals have adopted a similar test. See United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir.1997); United States v. Briones-Mata, 116 F.3d 308, 309-10 (8th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000-01 (10th Cir.1996); United States v. Restrepo-Aguilar, 74 F.3d 361, 364-65 (1st Cir.1996). Furthermore, this test has been applied by courts of appeals to classify crimes of mere drug possession as “drug trafficking crimes” under section 924(c)(2) and, by extension, an aggravated felony under section 2L1.2 of the Guidelines. See, e.g., Hinojosa-Lopez, 130 F.3d at 694; Briones-Mata, 116 F.3d at 309; Cabrera-Sosa, 81 F.3d at 1000. Under the Polanco test, Pornes-Garcia’s 1991 conviction qualifies as a conviction for the commission of an “aggravated felony” for purposes of section 2L1.2(b)(1)(A). First, the offense conduct to which he pleaded guilty, attempted possession of cocaine in the first degree, is punishable under the Controlled Substances Act as an attempt to commit a violation of 21 U.S.C. § 844(a), which makes it a crime to possess knowingly a controlled substance. See 21 U.S.C. §§ 844(a), 846 (1994 & Súpp. II 1996). The second requirement — that the defendant was convicted of a felony under either state or federal law — is also satisfied. See N.Y. Penal Law § 110.05(l)(McKinney 1998) (attempted criminal possession in the first degree is a class A-I felony). Thus, if the test adopted by this Court in Polanco controls, application of the enhancement was proper. Pornes-Gareia, however, contends that we implicitly overruled Polanco in Aguirre and that the Court’s interpretation of “aggravated felony” in that case governs application of the sixteen-level enhancement under section 2L1.2 of the Guidelines; alternatively, he urges us to adopt" }, { "docid": "22712392", "title": "", "text": "resident. In 1997, he was arrested on state charges in South Dakota, pleaded guilty to aiding and abetting another person’s possession of cocaine, and was sentenced to five years’ imprisonment. See S. D. Codified Laws § 22-42-5 (1988); § 22-6-1 (Supp. 1997); § 22-3-3 (1988). He was released for good conduct after 15 months. After his release, the Immigration and Naturalization Service (INS) began removal proceedings against Lopez, on two grounds: that his state conviction was a controlled substance violation, see 8 U. S. C. § 1227(a)(2)(B)(i), and was also for an aggravated felony, see § 1227(a)(2)(A)(iii). Lopez conceded the controlled substance violation but contested the aggravated felony determination, which would disqualify him from discretionary cancellation of removal. See § 1229b(a)(3). At first, the Immigration Judge agreed with Lopez that his state offense was not an aggravated felony because the conduct it proscribed was no felony under the Controlled Substances Act (CSA). But after the Board of Immigration Appeals (BIA) switched its position on the issue, the same judge ruled that Lopez’s drug crime was an aggravated felony after all, owing to its being a felony under state law. See Matter of Yanez-Garcia, 23 I. & N. Dec. 390 (2002) (announcing that BIA decisions would conform to the applicable Circuit law); United States v. Briones-Mata, 116 F. 3d 308 (CA8 1997) (per curiam) (holding state felony possession offenses are aggravated felonies). That left Lopez ineligible for cancellation of removal, and the judge ordered him removed. The BIA affirmed, and the Court of Appeals affirmed the BIA, 417 F. 3d 934 (CA8 2005). We granted certiorari to resolve a conflict in the Circuits about the proper understanding of conduct treated as a felony by the State that convicted a defendant of committing it, but as a misdemeanor under the CSA. 547 U. S. 1054 (2006). We now reverse. II The INA makes Lopez guilty of an aggravated felony if he has been convicted of “illicit trafficking in a controlled substance ... including,” but not limited to, “a drug trafficking crime (as defined in section 924(c) of title 18).” 8 U. S." }, { "docid": "3540118", "title": "", "text": "is a misdemeanor, the immigration authorities can redefine it as a felony, indeed as an aggravated felony. Such redefinition serves the interest in national uniformity of the standards for removability by forbidding states to decide, by their classification of a crime as a misdemeanor or a felony, who shall be removable. This case is the mirror image. If states cannot be permitted by exercising unusual leniency to spare criminals from banishment, neither should they be permitted by unusual severity to condemn criminals to banishment. We are mindful of cases that hold that when used to enhance a sentence the Controlled Substances Act does not require a finding that the state felony could have been punished as a (federal) felony under the Act. United States v. Ibarra-Galindo, 206 F.3d 1337, 1339-40 (9th Cir.2000); United States v. Restrepo-Aguilar, 74 F.3d 361, 364-65 (1st Cir.1996). As noted in United States v. Palacios-Suarez, 418 F.3d 692, 698-99 (6th Cir.2005), these decisions are based on a since-superseded sentencing guideline, and their current validity is in doubt. But even if they remain valid, no issue of disuniformity in the application of federal immigration law is pre sented by a sentence enhancement; and we saw earlier that there is no indication that the 1988 amendment that generates the issue in this case was concerned with regulating immigration. The petition for review is granted, and the case returned to the Board of Immigration Appeals for further proceedings consistent with this opinion." }, { "docid": "7569450", "title": "", "text": "punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C.App.1901 et seq.).” 18 U.S.C. § 924(c)(2). We agree with the other circuits that have addressed this question that for a drug offense to come within 18 U.S.C. § 924(c)(2), and hence to fit within the definition of aggravated felony, two criteria must be met: (1) the offense must be punishable under one of the three enumerated statutes, and (2) the offense must be a felony. See United States v. Restrepo-Aguilar, 74 F.3d 361, 364 (1st Cir.1996); United States v. Polanco, 29 F.3d 35, 38 (2d Cir.1994); United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir.1997); United States v. Briones-Mata, 116 F.3d 308, 309-310 (8th Cir.1997); United States v. Garcia-Olmedo, 112 F.3d 399, 400-401 (9th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir.1996). Appellant does not dispute the first criterion. The Controlled Substances Act (CSA) provides that possession of cocaine is a punishable offense, albeit as a misdemeanor. 21 U.S.C. § 844(a). Appellant does dispute the second criterion, contending that his pri- or conviction is not an “aggravated felony” because it is only a misdemeanor offense under the CSA. Id. He reads 18 U.S.C. § 924(c)(2) to define “drug trafficking crime” as any offense punishable as a felony under the CSA. Simon ignores the plain language of the CSA which defines a felony as “any Federal or State offense classified by applicable Federal or State law as a felony.” 21 U.S.C. § 802(13); see also Restrepo-Aguilar, 74 F.3d at 364 (“Section 924(c)(2)’s definition of ‘drug trafficking crime’ by its terms includes ‘any felony’ that is criminalized under the CSA.”). Since Appellant was convicted of possession of cocaine, a third-degree felony under Florida law, he has committed a felony for purposes of Section 924(c)(2). The district court therefore correctly imposed a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A). AFFIRMED. . We apply the version of the Sentencing Guidelines and commentary in effect on the date of sentencing," }, { "docid": "7996981", "title": "", "text": "state or federal law and (2) the conduct underlying the conviction is punishable under the CSA (or the other two statutes not at issue here). Garcia-Echaverria, 376 F.3d at 512. Courts adopting this approach rely on the fact that within the CSA itself, the term “felony” is defined as “any Federal or State offense classified by applicable Federal or State law as a felony.” 21 U.S.C. § 802(13). “Under this interpretation, a drug offense that is punishable as a felony under state law could be considered an ‘aggravated felony,’ for purposes of applying the enhancement contained in U.S.S.G. § 2L1.2, even if the conduct would have only been punishable as a misdemeanor under federal law.” Garcia-Echaverria, 376 F.3d at 512. A clear majority of our sister circuits have adopted this approach to interpret the phrase “aggravated felony” as used in U.S.S.G. § 2L1.2. See United States v. Wilson, 316 F.3d 506, 513 (4th Cir.), cert. denied, 538 U.S. 1025, 123 S.Ct. 1959, 155 L.Ed.2d 871 (2003); United States v. Pornes-Garcia, 171 F.3d 142, 148 (2d Cir.), cert. denied, 528 U.S. 880, 120 S.Ct. 191, 145 L.Ed.2d 161 (1999); United States v. Simon, 168 F.3d 1271, 1272 (11th Cir.), cert. denied, 528 U.S. 844, 120 S.Ct. 114, 145 L.Ed.2d 97 (1999); United States v. Hinojosa-Lopez, 130 F.3d 691, 694 (5th Cir.1997); United States v. Briones-Mata, 116 F.3d 308, 309 (8th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir.), cert. denied, 519 U.S. 885, 117 S.Ct. 218, 136 L.Ed.2d 151 (1996); United States v. Restrepo-Aguilar, 74 F.3d 361, 365 (1st Cir.1996). The Ninth Circuit has adopted a similar approach to interpreting the term “aggravated felony” within the context of U.S.S.G. § 2L1.2, but has added the further requirement that regardless of how the state classifies the conviction, the offense can be an “aggravated felony” for purposes of § 1101(a)(43)(B) only if it is “punishable by more than one year’s imprisonment under applicable state or federal law.” Robles-Rodriguez, 281 F.3d at 904. The court noted that within the CSA itself, the term “felony drug offense” is defined as “an offense" }, { "docid": "23535862", "title": "", "text": "felony under section 2L1.2 if it is a felony under the applicable state law but is punishable only as a misdemeanor under the Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq. This is a question of first impression in this circuit. The district court concluded that simple possession of drugs, if a felony under state law, can constitute an aggravated felony. J.A. 116-17. We agree, and thereby join the seven other circuits that have addressed the issue. See United States v. Ibarra-Galindo, 206 F.3d 1337 (9th Cir.2000); United States v. Pornes-Garcia, 171 F.3d 142 (2d Cir.1999); United States v. Simon, 168 F.3d 1271 (11th Cir.1999); United States v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir.1997); United States v. Briones-Mata, 116 F.3d 308 (8th Cir.1997); United States v. Cabrera-Sosa, 81 F.3d 998 (10th Cir.1996); United States v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir.1996). Our analysis begins with the guideline itself. The term “aggravated felony” is not defined in the text of section 2L1.2. However, the application note for that subsection states that “ ‘aggravated felony’ has the meaning given that term in 8 U.S.C. § 1101(a)(43).” U.S.S.G. § 2L1.2, Application Note 2. Section 1101(a)(43) of Title 8 provides that “[t]he term ‘aggravated felony’ means — (B) illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 92b(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B) (emphasis added). Section 924(c)(2) of Title 18, in turn, states that the term “drug trafficking crime” means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C.App.1901 et seq.). 18 U.S.C. § 924(c)(2) (emphasis added). The next step of the analysis is to determine what the elements of a drug trafficking crime are under section 924(c)(2). As it is structured, section 924(c)(2) is plainly comprised of two separate elements. It speaks first of “any felony” and then goes on to list three separate statutes under which the felony may" } ]

[ { "docid": "22476885", "title": "", "text": "Kahn next claims that since the transactions in question here were “isolated” and had no connection with a comprehensive scheme of interstate racketeering, application of the Travel Act, 18 U.S.C. § 1952, was improper. He relies chiefly upon Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971), and two of its progeny, United States v. Altobella, 442 F.2d 310 (7th Cir. 1971), and United States v. McCormick, 442 F.2d 316 (7th Cir. 1971). None of those cases calls for reversal of the Travel Act convictions here. In Rewis, the Supreme Court held that neither the language nor the legislative history of the Travel Act showed that Congress intended the statute to apply to a purely local gambling operation just because some of its customers crossed state lines. Altobella reached a similar result in a case where the only use of interstate facilities resulted from the fact that an extortion victim cashed a check on an out-of-state bank to pay off the defendants. Similarly, in McCormick the only ostensible interstate facet of the crime, running an illegal Indiana lottery, occurred when a local newspaper in which the defendant had advertised for some salesmen mailed some of its copies out of state. The common thread through each of these decisions is that the defendants themselves engaged in no interstate activities, and that the total interstate travel aspect of the enterprises was either marginal or unforeseen. Indeed, the Rewis court left open the question of whether proof of active solicitation of an interstate clientele might come within the Act, and cited with explicit approval cases where the statute was applied to individuals whose agents or employees crossed state lines in furtherance of an illegal activity. 401 U.S. at 813, 814, 91 S.Ct. 1056. And, in United States v. Lee, 448 F.2d 604, 606-607 (7th Cir.), cert. denied, 404 U.S. 858, 92 S.Ct. 107, 30 L.Ed.2d 100 (1971), the Seventh Circuit found Rewis and Altobella inapplicable where the interstate travel was that of a member, rather than a victim, of the illegal enterprise. The case at hand shows a" } ]

[ { "docid": "15349500", "title": "", "text": "substances, or prostitution, the Government must prove more than an isolated incident; it must prove a business enterprise. On the other hand, if the underlying offense involves extortion, bribery, or arson, then the business enterprise limitation does not apply- In this case, the underlying offense involved extortion. Thus, the Government was not required to prove a business enterprise. The defendants contend that this was error. They argue that the legislative history of the Travel Act demonstrates that the business enterprise limitation in subdivision (1) was intended to apply as well to subdivision (2). The defendants assert, and we agree, that a primary purpose of the Travel Act was to aid local law enforcement in combatting organized crime figures who could avoid apprehension by local officials by travelling interstate. See Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971); United States v. Nardello, 393 U.S. 286, 290-91, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969). Frequent references are made in the legislative history to “continuous course of conduct,” “business enterprises,” and “organized crime.” Nonetheless, the Supreme Court has noted that “the reach of the statute clearly was not limited to instances in which organized criminal activity in one State is managed from another State . . . .” Erlenbaugh v. United States, 409 U.S. 239, 247 n.21, 93 S.Ct. 477, 482 n.21, 34 L.Ed.2d 446 (1972) (Court’s emphasis). The evidence most helpful to the defendants’ contention can be found in testimony before the Senate Committee of the Judiciary, (reprinted in S.Rep.No. 644, 87th Cong. 1st Sess.1961). Attorney General Robert F. Kennedy stated that the “target” of the bill clearly is organized crime. The travel that would be banned is travel “in furtherance of a business enterprise” which involves gambling, liquor, narcotics, and prostitution offenses or extortion or bribery. Obviously, we are not trying to curtail the sporadic, casual involvement in these offenses, but rather a continuous course of conduct sufficient for it to be termed a business enterprise. We are unconvinced that this evidence of legislative intent compels the result suggested by the defendants. Where the statutory" }, { "docid": "861902", "title": "", "text": "& B checks, and their interstate transmission in the process of clearing, were essential in transferring to Peskin the funds necessary to carry out the arrangements between Stulberg and himself. There is no evidence that Peskin was specifically aware of these checks. He contends on appeal that the use of interstate commerce facilities was minimal and incidental and therefore insufficient under the Travel Act, and, additionally, that the violation of state law was completed before such use. We first treat the argument that the use of interstate facilities was minimal and incidental. Although the Travel Act, 18 U.S.C. § 1952, was enacted to combat organized crime, United States v. Nardello, 393 U.S. 286, 290-91, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969), its language and scope are not so limited. United States v. Archer, 486 F.2d 670, 678-80 (2d Cir. 1973); United States v. Phillips, 433 F.2d 1364, 1367 (8th Cir. 1970), cert. denied, 401 U.S. 917, 91 S.Ct. 900, 27 L.Ed.2d 819; United States v. Roselli, 432 F.2d 879, 885 (9th Cir. 1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828. Nevertheless, we are mindful that Congress did not intend “a broadranging interpretation of § 1952.” Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971). Peskin argues that he neither knew of nor solicited the interstate transfer and that the source of the funds was immaterial to him as well as to the bribery. Citing United States v. Isaacs, 493 F.2d 1124 (7th Cir. 1974), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146; United States v. Altobella, 442 F.2d 310 (7th Cir. 1971); and United States v. McCormick, 442 F.2d 316 (7th Cir. 1971), he concludes that the use of interstate facilities to clear the Detroit checks was “minimal” and “incidental” and thus insufficient to invoke the Travel Act. The transmission of funds to Mr. Peskin was essential to the carrying on of the illegal activity. Although he had advanced the first payments, others were contemplated, and no one would expect him to complete the plans if he" }, { "docid": "22989533", "title": "", "text": "charges for using the mails to defraud should depend on this weak thread is to say that the most attenuated use of the post office is sufficient under the statute. II The flaw in the majority’s diagnosis of the convictions on the two travel act counts is similar to that in the mail fraud counts. My colleagues, ignoring the limited congressional purpose of the act, stretch the statute beyond recognition and extend unduly federal jurisdiction to prosecute what was essentially a state crime. The congressional purpose of the travel act was to attack criminal activities extending beyond the borders of one state by providing federal assistance in situations in which local law enforcement was ineffective. United States v. Nardello, 393 U.S. 286, 290-92, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969). See also Erlenbaugh v. United States, 409 U.S. 239, 245-46, 93 S.Ct. 477, 34 L.Ed.2d 446 (1972). The statute was aimed primarily at organized crime and, in particular, at persons who reside in one state while operating or managing activities located in another. Rewis v. United States, 401 U.S. 808, 811, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971). I concur with the view that the scope of the statute is not limited to the original congressional purpose, i. e., organized criminal activity operating interstate. See United States v. Peskin, 527 F.2d 71, 76-77 (7th Cir. 1975), cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976). As with the mail fraud statute, the alleged criminal activity should be viewed broadly. But, as with the mail fraud statute, Congress did not intend a broad-ranging interpretation of section 1952. The interstate travel aspects should be scrutinized narrowly. Otherwise, federal jurisdiction is extended to situations never intended by Congress. Rewis, supra, 401 U.S. at 812, 91 S.Ct. 1056. The test for application of section 1952 is the nature and degree of interstate activity in furtherance of the state crime. United States v. Isaacs, 493 F.2d 1124, 1148 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974). As the majority concedes, that degree of interstate travel or" }, { "docid": "22989534", "title": "", "text": "United States, 401 U.S. 808, 811, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971). I concur with the view that the scope of the statute is not limited to the original congressional purpose, i. e., organized criminal activity operating interstate. See United States v. Peskin, 527 F.2d 71, 76-77 (7th Cir. 1975), cert. denied, 429 U.S. 818, 97 S.Ct. 63, 50 L.Ed.2d 79 (1976). As with the mail fraud statute, the alleged criminal activity should be viewed broadly. But, as with the mail fraud statute, Congress did not intend a broad-ranging interpretation of section 1952. The interstate travel aspects should be scrutinized narrowly. Otherwise, federal jurisdiction is extended to situations never intended by Congress. Rewis, supra, 401 U.S. at 812, 91 S.Ct. 1056. The test for application of section 1952 is the nature and degree of interstate activity in furtherance of the state crime. United States v. Isaacs, 493 F.2d 1124, 1148 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974). As the majority concedes, that degree of interstate travel or activity must be more than minimal or incidental; the statute was intended to reach only significant interstate activity. Isaacs, supra at 1146; United States v. Altobella, 442 F.2d 310 (7th Cir. 1971); United States v. McCormick, 442 F.2d 316 (7th Cir. 1971). There was no significant interstate activity in this case. The defendants’ activities were all local: Illinois residents, corporations, and trade associations seeking to bribe Illinois legislators to obtain a new Illinois law. There is no evidence in this record of any interstate activity with the single exception of Lauwereins’ one trip to Indianapolis. Lauwereins, an unindicted coschemer, travelled from Chicago to Indianapolis to meet with members of the Illinois Division-Midwest Ready-Mix Concrete Association (ID-MRCA), who were attending an annual convention there. The purpose of his trip was to inform them of the $50,000 bribe and to seek their support in raising the money. When the ID-MRCA refused to help, Lauwereins returned to Chicago. There is no showing that the bribery scheme in any way depended on this one incident of interstate travel. That" }, { "docid": "5052846", "title": "", "text": "question, and fails to set forth the essential elements of bribery under New York law. Again, the Court rejects the defendants’ assertions in all respects. In support of their position that the interstate activity was marginal and in no way furthered the unlawful activity, defendants rely on Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971), its two progeny, United States v. Altobella, 442 F.2d 310 (7th Cir. 1971) and United States v. McCormick, 442 F.2d 316 (7th Cir. 1971) (per curiam), United States v. Archer, 486 F.2d 670 (2d Cir. 1973) and United States v. Judkins, 428 F.2d 333 (6th Cir. 1970). In Rewis, certain defendants operated a lottery in Florida which was frequented by out-of-state customers who were also defendants therein. Significantly, the Supreme Court noted that there was no evidence that the operator defendants had at any time crossed state lines in connection with the lottery’s operation. 401 U.S. at 810, 91 S.Ct. 1056. In reversing the convictions, the Court stated that the legislative history “reveal[s] that § 1952 was aimed primarily at organized crime and, more specifically, at persons who reside in one state while operating or managing illegal activities located in another.” Id. at 811, 91 S.Ct. at 1059. The Court also noted “§ 1952 strongly suggests that Congress did not intend that the Travel Act should apply to criminal activity solely because that activity is at times patronized by persons from another State.” Id. at 812, 91 S.Ct. at 1059. Altobella involved the extortion of a Philadelphia victim during a Chicago business trip. As in Rewis all the defendants’ activities occurred solely in Chicago. However, the extortion did involve the cashing by the victim of a personal check drawn on a Philadelphia bank. Use of the mails was thus required for the check to clear. 442 F.2d at 311-12. The Altobella Court concluded “when both the use of [an] interstate facility and the subsequent act are as minimal and incidental as in this case, we do not believe a federal crime has been committed.” Id. at 315. In McCormick" }, { "docid": "222579", "title": "", "text": "of the United States (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States, or (3) any act which is indictable under subchapter II of chapter 53 of title 31, United States Code, or under section 1956 or 1957 of this title. . The Court is, of course, mindful that the Supreme Court has cautioned that Congress did not intend \"a broadranging interpretation of § 1952.\" Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971). That admonition has, however, been issued where the defendants themselves did not directly cause or engage in interstate activity, and where the interstate component was marginal at best. See United States v. Kahn, 472 F.2d 272, 285 (2d Cir.), cert. denied, 411 U.S. 982, 93 S.Ct. 2270, 36 L.Ed.2d 958 (1973). The Court was thus wary that the Travel Act not be used to target primarily local activity and thereby upset the federal-state balance — a concern not present in the instant case. . Given this rationale, there is ample doubt whether head of state immunity extends to private or criminal acts in violation of U.S. law. See In re Doe, 860 F.2d at 45; In re Grand Jury Proceedings, Doe # 700, 817 F.2d at 1111; Republic of Philippines v. Marcos (Marcos I), 806 F.2d 344, 360 (2d Cir.1986). Criminal activities such as the narcotics trafficking with which Defendant is charged can hardly be considered official acts or governmental duties which promote a sovereign state’s interests, especially where, as here, the activity was allegedly undertaken for the sole personal benefit of the foreign leader. In light of the Court’s disposition on other grounds, however, it reserves discussion of this issue for Defendant’s act of state defense, infra. . The Panamanian Defense Forces are a creation of Noriega’s under which he combined the National Guard, other Panamanian military and police forces, and some bureaucratic departments. . The provision of customary international law cited by Defendant as an acceptable definition of a head of state would not include" }, { "docid": "5052845", "title": "", "text": "section 371 and defendants’ motion to dismiss this count must therefore be denied. DEFENDANTS’ MOTION TO DISMISS COUNT TWO OF THE INDICTMENT As previously noted, Count Two of the indictment charges four defendants with a violation of section 1952 of Title 18, commonly known as the Travel Act. See note 12 supra. As with Count One, defendants claim that Count Two fails to invoke federal jurisdiction. Specifically, the defendants contend that the alleged interstate activity consisting of two telephone calls between New Jersey and the Eastern District of New York “played no part or [only] a minimal, marginal part in furtherance of the . alleged crime.” They thus conclude that Count Two fails to state a cognizable offense under section 1952. Defendants further argue that Count Two must be dismissed as being impermissibly vague and also because it fails to allege the necessary elements of the crime charged. In advancing these contentions, the defendants rely on the fact that the indictment merely tracks the language of section 1952, fails to specify the public official in question, and fails to set forth the essential elements of bribery under New York law. Again, the Court rejects the defendants’ assertions in all respects. In support of their position that the interstate activity was marginal and in no way furthered the unlawful activity, defendants rely on Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971), its two progeny, United States v. Altobella, 442 F.2d 310 (7th Cir. 1971) and United States v. McCormick, 442 F.2d 316 (7th Cir. 1971) (per curiam), United States v. Archer, 486 F.2d 670 (2d Cir. 1973) and United States v. Judkins, 428 F.2d 333 (6th Cir. 1970). In Rewis, certain defendants operated a lottery in Florida which was frequented by out-of-state customers who were also defendants therein. Significantly, the Supreme Court noted that there was no evidence that the operator defendants had at any time crossed state lines in connection with the lottery’s operation. 401 U.S. at 810, 91 S.Ct. 1056. In reversing the convictions, the Court stated that the legislative history “reveal[s] that" }, { "docid": "22190350", "title": "", "text": "1952. The defendants, on the other hand, contend that § 1952 requires a more substantial showing of use of interstate facilities as a necessary element of the alleged unlawful activity. For reasons which follow, we conclude that the use of interstate facilities here was so minimal, incidental, and fortuitous, and so peripheral to the activities of Isaacs, Kerner and the other participants in this bribery scheme, that it was error to submit Counts II, III and IV to the jury. The Supreme Court has spoken of the scope of § 1952 primarily in Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493. In holding that the operators of a Florida gambling establishment could not be prosecuted under § 1952 by reason of the fact that some of their customers travelled there from Georgia, the Court emphasized that Congress in enacting § 1952 intended primarily to strike at organized crime’s interstate operations and that there was no desire to alter sensitive federal-state relationships, * * * overextend limited federal police resources, * * * [or] produce situations in which the geographic origin of customers, a matter of happenstance, would transform relatively minor state offenses into federal felonies. 401 U.S. at 812, 91 S.Ct. at 1059. The Court concluded that to hold the defendants liable for the crossing of state lines by their customers would unduly extend the federal power to prosecute essentially state crimes. Similarly, were the § 1952 counts here to be upheld, the federal-state balance would be seriously upset. It would be the rare case where investigation of an enterprise in violation of state law would not disclose some incidental and fortuitous use of interstate facilities which might then be used to support a federal prosecution. Nothing in the legislative history supports such a broad reading of the statute. S. Rep.No.644, 87th Cong., 1st Sess., U.S. Code Cong. & Admin.News 1961, p. 2664. See also Erlenbaugh v. United States, 409 U.S. 239, 247 n. 21, 93 S.Ct. 477, 34 L.Ed.2d 335; United States v. Archer, 2 Cir., 486 F.2d 670. When faced with the task" }, { "docid": "15349499", "title": "", "text": "that they use interstate facilities to secure her presence in Pittsburgh. Moreover, the use of those facilities in this case was not only necessary to the completion of the planned extortion, it was also intention al and knowing. We hold that a knowing and intentional use of interstate facilities, even though of limited duration, to carry out an extortion scheme is within the reach of the Travel Act. 2. Definition of “unlawful activity.” As indicated earlier, a Travel Act violation occurs when interstate facilities are used to promote any “unlawful activity.” “Unlawful activity” is defined in the Act as follows: (b) As used in this section “unlawful activity” means (1) any business enterprise involving gambling, liquor . ., narcotics, or controlled substances . or prostitution offenses . . ., or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States. 18 U.S.C. § 1952 (1976). When one parses this section, the plain meaning is evident. If the underlying offense involves gambling, liquor, narcotics, controlled substances, or prostitution, the Government must prove more than an isolated incident; it must prove a business enterprise. On the other hand, if the underlying offense involves extortion, bribery, or arson, then the business enterprise limitation does not apply- In this case, the underlying offense involved extortion. Thus, the Government was not required to prove a business enterprise. The defendants contend that this was error. They argue that the legislative history of the Travel Act demonstrates that the business enterprise limitation in subdivision (1) was intended to apply as well to subdivision (2). The defendants assert, and we agree, that a primary purpose of the Travel Act was to aid local law enforcement in combatting organized crime figures who could avoid apprehension by local officials by travelling interstate. See Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971); United States v. Nardello, 393 U.S. 286, 290-91, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969). Frequent references are made in the legislative history to “continuous course of conduct,” “business enterprises,” and “organized" }, { "docid": "222580", "title": "", "text": "case. . Given this rationale, there is ample doubt whether head of state immunity extends to private or criminal acts in violation of U.S. law. See In re Doe, 860 F.2d at 45; In re Grand Jury Proceedings, Doe # 700, 817 F.2d at 1111; Republic of Philippines v. Marcos (Marcos I), 806 F.2d 344, 360 (2d Cir.1986). Criminal activities such as the narcotics trafficking with which Defendant is charged can hardly be considered official acts or governmental duties which promote a sovereign state’s interests, especially where, as here, the activity was allegedly undertaken for the sole personal benefit of the foreign leader. In light of the Court’s disposition on other grounds, however, it reserves discussion of this issue for Defendant’s act of state defense, infra. . The Panamanian Defense Forces are a creation of Noriega’s under which he combined the National Guard, other Panamanian military and police forces, and some bureaucratic departments. . The provision of customary international law cited by Defendant as an acceptable definition of a head of state would not include Noriega. The Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents (T.I. A.S. No. 8532; 28 U.S.T.1975) defines “internationally protected person” as “(a) a Head of State, including any member of a collegial body performing the functions of a Head of State under the constitution of the State concerned, a Head of Government or a Minister of Foreign Affairs ...” Noriega has not shown that he was either the ceremonial or official head of government, and he does not otherwise fulfill the definition. . This principle undermines Defendant’s reliance on the government's position in Republic of Philippines by Central Bank of Philippines v. Marcos, 665 F.Supp. 793 (N.D.Cal.1987). There, the government moved to quash a deposition subpoena served on the Philippine Solicitor General by unsuccessfully arguing that the Solicitor General qualified for head of state immunity. Noriega maintains that his status as de jure Commander in Chief of the Panamanian Defense Forces and de facto head of the Panamanian government is at least as high as a solicitor general" }, { "docid": "861903", "title": "", "text": "401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828. Nevertheless, we are mindful that Congress did not intend “a broadranging interpretation of § 1952.” Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971). Peskin argues that he neither knew of nor solicited the interstate transfer and that the source of the funds was immaterial to him as well as to the bribery. Citing United States v. Isaacs, 493 F.2d 1124 (7th Cir. 1974), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146; United States v. Altobella, 442 F.2d 310 (7th Cir. 1971); and United States v. McCormick, 442 F.2d 316 (7th Cir. 1971), he concludes that the use of interstate facilities to clear the Detroit checks was “minimal” and “incidental” and thus insufficient to invoke the Travel Act. The transmission of funds to Mr. Peskin was essential to the carrying on of the illegal activity. Although he had advanced the first payments, others were contemplated, and no one would expect him to complete the plans if he were not reimbursed in the first instance. The deposit and interstate clearance of the Detroit cheeks were essential in fact to the payment of Peskin, though he and perhaps Stulberg were unaware of the details. We do not consider this use of interstate facilities “minimal” and “incidental” as those terms have been used in this context. The significance of the use of interstate facilities in this case differs markedly from that in the cases relied upon. Altobella held that the clearance of an out-of-state check used by the victim of an extortion to raise cash with which to make payment even though followed by the distribution of the proceeds among the wrongdoers was minimal and insufficient to invoke federal jurisdiction. In McCormick an operator of a purely local gambling activity advertised for salesmen. A few of the newspapers containing the advertisements were mailed to out-of-state subscribers. This court held “there was no showing that defendant’s lottery in any way depended upon or included interstate operations.” McCormick, supra, 442 F.2d at 318. In Isaacs, three checks" }, { "docid": "22437472", "title": "", "text": "that and, oh, you’ll mail that other stuff down to me, huh? Second, the government presented evidence of a series of telephone conversations between December 14, 1979, and January 31, 1980, from Heald in Portland to the defendants in Washington. The evidence suggests that Heald was in Portland on January 29 and establishes that he was in Portland on January 31. That Heald was there on January 30 as well is not an irrational conclusion. Considering Heald’s testimony, evidence of the series of telephone calls originating from Portland, and the content of the conversation, the jury had before it sufficient direct and circumstantial evidence from which it could conclude beyond a reasonable doubt that the telephone call on January 30 crossed state lines. Walgren’s second challenge to the interstate commerce element of his Travel Act conviction rests on Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971), and United States v. Archer, 486 F.2d 670 (2d Cir. 1973). He argues that the government failed to prove that the interstate nature of the telephone call was a necessary and integral part of the Travel Act violation. In Rewis, the court of appeals had affirmed the convictions of the operators of a gambling business based on the interstate travel of their customers. The Supreme Court reversed. It declined to extend the Travel Act to “criminal activity solely because that activity is at times patronized by persons from another State.” 401 U.S. at 812, 91 S.Ct. at 1059. The Court rejected the government’s theory that the Travel Act is violated when operators of an illegal gambling operation reasonably could foresee the travel of customers from across state lines. Id. at 812, 91 S.Ct. at 1059. But it did endorse earlier “cases in which federal courts have correctly applied § 1952 to those individuals whose agents or employees cross state lines in furtherance of illegal activity.” Id. Because no evidence was produced at trial that the defendants actively had encouraged out-of-state-patronage, the Court refused to apply the latter theory to them. In one of the cases favorably cited by" }, { "docid": "222498", "title": "", "text": "den., 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971). The precise issue in Roselli involved the Travel Act’s application to criminal activity notwithstanding the defendant’s lack of participation in a traditional organized syndicate, but the court’s analysis of the statute’s liberal coverage seemingly applies here as well. In short, the Court finds that where, as here, the defendant causes interstate travel or activity to promote an unlawful purpose, § 1952(a)(3) applies, whether or not the defendant is physically present in the United States. Jurisdiction over Defendant’s extraterritorial conduct is therefore appropriate both as a matter of international law and statutory construction. II. SOVEREIGN IMMUNITY The Court next turns to Noriega’s assertion that he is immune from prosecution based on head of state immunity, the act of state doctrine, and diplomatic immunity. A. Head of State Immunity Grounded in customary international law, the doctrine of head of state immunity provides that a head of state is not subject to the jurisdiction of foreign courts, at least as to official acts taken during the ruler’s term of office. In re Grand Jury Proceedings, Doe #700, 817 F.2d 1108, 1110 (4th Cir.), cert. denied, 484 U.S. 890, 108 S.Ct. 212, 98 L.Ed.2d 176 (1987); In re Doe, 860 F.2d 40, 44-45 (2d Cir.1988). The rationale behind the doctrine is to promote international comity and respect among sovereign nations by ensuring that leaders are free to perform their governmental duties without being subject to detention, arrest, or embarrassment in a foreign country’s legal system. In re Grand Jury Proceedings, Doe # 700, 817 F.2d at 1110; see generally, Note, Resolving the Confusion Over Head of State Immunity; The Defined Right of Kings, 86 Colum.L.Rev. 169, 171-79 (1986). In order to assert head of state immunity, a government official must be recognized as a head of state. Noriega has never been recognized as Panama’s Head of State either under the Panamanian Constitution or by the United States. Title VI, Article 170 of the Panamanian Constitution provides for an executive branch composed of the President and Ministers of State, neither of which applies to" }, { "docid": "15349495", "title": "", "text": "is when extortion is charged under the Travel Act whether the Government must prove a “business enterprise.” 1. Sufficiency of interstate activities. A violation of the Travel Act occurs when a person travels in interstate commerce or uses any facility in interstate commerce to promote any unlawful activity as defined by the Act. The convictions on the substantive counts in this case related to the two interstate telephone calls made by Wander and Reddington to Currie while she was in Florida and Currie’s Florida to Pittsburgh plane ride. The defendants contend that the “minimal and fortuitous involvement in interstate commerce” is insufficient to satisfy the interstate nexus requirement of the Travel Act. Although conceding that the activities proven at the trial fall within one possible reading of the language of the Travel Act, they argue that principles of federalism and prior case law compel a stricter construction of the interstate nexus requirement than one that would reach the conduct in this case. We disagree. The Supreme Court in Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971), held that where the defendants ran a gambling establishment, the attendance of out-of-state customers at the establishment was an insufficient nexus to interstate commerce to permit conviction under the Act. The Court believed that the Act was aimed primarily at organized crime and that Congress did not intend overly broad application of the Travel Act which “would alter sensitive federal-state relationships, could overextend limited federal police resources, and might well produce situations in which the geographic origin of customers, a matter of happenstance, would transform relatively minor state offenses into federal felonies.” Id. at 812, 91 S.Ct. at 1059. Thus, in certain circumstances, “the use of interstate facilities [will be] so minimal, incidental, and fortuitous, and so peripheral to the activities” of the defendants, that conviction under this Act will be barred. United States v. Isaacs, 493 F.2d 1124, 1146 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 146 (1974). Even with these considerations in mind, we must not construe this Act too narrowly." }, { "docid": "8536106", "title": "", "text": "Even assuming that § 1952 was aimed at organized criminal activity, if Congress had intended the statute to apply only to organized crime, it would of necessity have included a definition of “organized crime” in the statute; otherwise, courts would be faced with the insurmountable task of determining exactly to whom the statute applies. This Court looks in vain for such a definition. Even in Rewis v. United States, 401 U.S. 808, 811, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971), a case heavily relied on by the defendants, the Supreme Court stated “that § 1952 was aimed primarily at organized crime.” (Emphasis added.) Case law reveals many instances in which individuals have been convicted under the Travel Act for bribery and extortion offenses who had absolutely no relationship to organized crime. See, e. g., United States v. Pordum, 451 F.2d 1015 (2d Cir. 1971), cert. denied, 405 U.S. 998, 92 S. Ct. 1249, 31 L.Ed.2d 467 (1972); United States v. Mahler, supra, 442 F.2d 1172. Indeed, even in prosecutions under § 1952(b)(1), in which a “business enterprise” must be shown, there is no necessity to prove that a defendant was associated with an organized crime syndicate; a continuous course of conduct by a petty hoodlum acting alone is sufficient. Spinelli v. United States, 382 F.2d 871, 889-890 (8th Cir. 1967) (en banc), rev’d on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). With regard to their third contention, defendants submit that the crime alleged herein was essentially local in character, and rely on Rewis v. United States, supra, 401 U.S. 808, 91 S.Ct. 1056; United States v. Altobella, 442 F.2d 310 (7th Cir. 1971); and United States v. McCormick, 442 F.2d 316 (7th Cir. 1971), to support their contention that any use of interstate facilities in the instant case was so minimal and incidental to the crime charged as to deprive this court of jurisdiction under § 1952. Moreover, defendants argue that the only interstate element of the crime was provided by the Government through Barone who, it appears from the Government’s brief, was posing" }, { "docid": "11172095", "title": "", "text": "did not even use the word “bribe,” but employed the more precise words “gift or gratuity.” N.Y. Penal Law § 439 (McKinney 1944). We must determine whether Congress intended to embrace commercial bribery within the scope of a statute which, as is clear from its legislative history, was enacted for the purpose of punishing interstate travel in aid of racketeering enterprises engaged in by organized crime. As Mr. Justice Marshall stated for a unanimous Court in Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971), a case which gave a restrictive interpretation to the Travel Act, the “[ljegislative history of the Act is limited, but does reveal that § 1952 was aimed primarily at organized crime and, more specifically, at persons who reside in one State while operating or managing illegal activities located in another.” 401 U.S. at 811, 91 S.Ct. at 1059. The Court in Rewis cautioned that “an expansive Travel Act would alter sensitive federal-state relationships, could overextend limited federal police resources, and . would transform relatively minor state offenses into federal felonies.” 401 U.S. at 812, 91 S.Ct. at 1059. Later the same year, in United States v. Bass, 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971), the Court again stressed that “unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance.” The Bass Court also noted that “Congress has traditionally been reluctant to define as a federal crime conduct readily denounced as criminal by the States,” and that “the broad construction urged by the Government renders traditionally local criminal conduct a matter for federal enforcement and would also involve a substantial extension of federal police resources.” Id. Guided by these principles, we said in United States v. Archer, 486 F.2d 670, 680 (2 Cir. 1973): “While the precise holding of Rewis was that the proprietors of a Florida gambling establishment did not violate the Travel Act merely because some of their customers came from Georgia, a course of action foreseeable and even designed, the opinion indicates that the Act" }, { "docid": "8536105", "title": "", "text": "they argue, the indictment alleges only one, isolated act of bribery. Section 1952(b), however, defines the “unlawful activity” prohibited by § 1952(a) as falling Into two categories: “(1) any business enterprise involving gambling [and other offenses], or (2) bribery. . . .” (Emphasis added.) The “business enterprise” requirement is conspicuously absent from the second category of unlawful activity defined in § 1952(b)(2). See United States v. Mahler, 442 F.2d 1172, 1174-75 (9th Cir.), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971); Marshall v. United States, 355 F.2d 999 (9th Cir.), cert. denied, 385 U.S. 815, 87 S.Ct. 34, 17 L.Ed.2d 54 (1966). Therefore, notwithstanding any legislative history cited by defendants to the contrary, the clear and unequivocal language of the statute and supporting case law do not support their position. With regard to their second contention, defendants urge that § 1952 was intended exclusively to curtail the unlawful activities of organized crime; here, they claim, no connection between the defendants and organized crime has been alleged. This argument is without merit. Even assuming that § 1952 was aimed at organized criminal activity, if Congress had intended the statute to apply only to organized crime, it would of necessity have included a definition of “organized crime” in the statute; otherwise, courts would be faced with the insurmountable task of determining exactly to whom the statute applies. This Court looks in vain for such a definition. Even in Rewis v. United States, 401 U.S. 808, 811, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971), a case heavily relied on by the defendants, the Supreme Court stated “that § 1952 was aimed primarily at organized crime.” (Emphasis added.) Case law reveals many instances in which individuals have been convicted under the Travel Act for bribery and extortion offenses who had absolutely no relationship to organized crime. See, e. g., United States v. Pordum, 451 F.2d 1015 (2d Cir. 1971), cert. denied, 405 U.S. 998, 92 S. Ct. 1249, 31 L.Ed.2d 467 (1972); United States v. Mahler, supra, 442 F.2d 1172. Indeed, even in prosecutions under § 1952(b)(1), in which" }, { "docid": "222578", "title": "", "text": "(1985). . Pub.L. No. 91-452, § 904(a), 84 Stat. 947. . 18 U.S.C. § 1952 provides in pertinent part: (a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to— (1) distribute the proceeds of any unlawful activity; or (2) commit any crime of violence to further any unlawful activity; or (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,-000 or imprisoned for not more than five years, or both. (b) As used in this section “unlawful activity\" means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics or controlled substances (as defined in section 102(6) of the Controlled Substances Act), or prostitution offenses in violation of the laws of the State in which they are committed or of the United States (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States, or (3) any act which is indictable under subchapter II of chapter 53 of title 31, United States Code, or under section 1956 or 1957 of this title. . The Court is, of course, mindful that the Supreme Court has cautioned that Congress did not intend \"a broadranging interpretation of § 1952.\" Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971). That admonition has, however, been issued where the defendants themselves did not directly cause or engage in interstate activity, and where the interstate component was marginal at best. See United States v. Kahn, 472 F.2d 272, 285 (2d Cir.), cert. denied, 411 U.S. 982, 93 S.Ct. 2270, 36 L.Ed.2d 958 (1973). The Court was thus wary that the Travel Act not be used to target primarily local activity and thereby upset the federal-state balance — a concern not present in the instant" }, { "docid": "2603191", "title": "", "text": "46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). Thus, the Court cautioned that serious due process problems would be raised if a general undefined term like “racketeering” was read into the statute. Id. 435 U.S. at 374, 98 S.Ct. at 1114. Like the Second Circuit, we are not unmindful that “the potentially broad reach of RICO poses a danger of abuse where the prosecutor attempts to apply the statute to situations for which it was not primarily intended.” United States v. Weisman, 624 F.2d 1118, 1123 (2d Cir.), cert. denied,-U.S.-, 101 S.Ct. 209, 66 L.Ed.2d 91 (1980), quoting United States v. Huber, 603 F.2d 387, 395-96 (2d Cir. 1979). We, too, “caution against undue prosecutorial zeal in invoking RICO.” Id. The defendants in this case, however, would have us substitute their own definition of racketeering for the one provided by § 1961 of the Act. This we cannot do. . The district court quotes Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971), for the proposition that an “expansive interpretation of the Travel Act would alter sensitive federal-state relationships, [and] could over-extend federal police resources . ... ” In Rewis, the Court held that conducting a gambling establishment frequented by out-of-state bettors does not, without more, violate the Travel Act. In the recent case of Perrin v. United States, 444 U.S. 37, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979), however, the Court rejected a claim that the concerns for federalism expressed in Rewis require a narrow interpretation of the Travel Act. The issue in Perrin was whether the Travel Act proscribed commercial bribery that violated state law. In holding that it did, the Court noted that So long as the requisite interstate nexus is present, the statute reflects a clear and deliberate intent on the part of Congress to alter the federal-state balance in order to reinforce state law enforcement. In defining an “unlawful activity,” Congress has clearly stated its intention to include violations of state as well as federal bribery law. Until statutes such as the Travel Act contravene some provision of" }, { "docid": "23086464", "title": "", "text": "more than five years, or both. “(b) As used in this section ‘unlawful activity’ means ... (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States. . . . ” The indictment charged defendants with causing others to travel in interstate commerce and to use the facilities of interstate commerce so as to unlawfully solicit, agree to receive, and receive the payment of money in exchange for engineering contracts. 18 U.S.C. §§ 1952 & 2. Their objections go to the elements of travel or use of an interstate facility, and to the nature of the purported “unlawful activity”. Defendants argue that the court erred in instructing that Graham’s interstate travel and Meridian’s use of the mail would sustain a conviction under the Travel Act. The court instructed that if the defendants “caused or induced Graham to travel from Philadelphia to New Bedford” or caused Graham to use the mails, the interstate component of the Travel Act would be satisfied. In Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971), the Supreme Court, reversing a conviction under the Travel Act, held that the interstate travel of patrons from Georgia to a Florida gambling operation could not be imputed to the defendants, the operation’s owners. The Court indicated, however, that a violation could occur if a defendant so actively encouraged patrons to travel interstate that his conduct approximated that of a principal in a criminal agency relationship. Id. at 814, 91 S.Ct. at 1060, 28 L.Ed.2d at 497. We think the instruction here comported sufficiently with the analysis in Rewis. See United States v. Marquez, 449 F.2d 89 (2d Cir. 1971), cert. denied, 405 U.S. 963, 92 S.Ct. 1167, 31 L.Ed.2d 239 (1972); United States v. De Cavalcante, 440 F.2d 1264 (3d Cir. 1971); 18 U.S.C. § 2(b). The evidence, it is true, was likely insufficient to support a jury finding that Baptista caused Graham to travel to New Bedford. But evidence of Meridian’s prearranged use of the mails to forward checks to defendants strongly supported" } ]

[ { "docid": "11170179", "title": "", "text": "jury had adequate evidence to support their finding identifying Schnabolk, Kalon and An-dra as an association-in-fact and as the persons who conducted the enterprise as well. We have considered appellants’ other contentions regarding the RICO claim and have found them to be meritless. B. The New York General Business Law Claim Appellants contend that Securitron has no standing to assert a claim under New York General Business Law § 349 because Securitron has not demonstrated any harm to the public and is simply a business competitor of the appellants. We reject this contention. New York General Business Law § 349 prohibits “[deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service.” Although the statute is, at its core, a consumer protection device, see Genesco Entertainment v. Koch, 593 F.Supp. 743, 751 (S.D.N.Y.1984), “corporate competitors now have standing to bring a claim under this [statute] ... so long as some harm to the public at large is at issue,” Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 786 F.Supp. 182, 215 (E.D.N.Y.), vacated in part on other grounds, 973 F.2d 1033 (2d Cir.1992); see also Construction Technology, Inc. v. Lockformer Co., 704 F.Supp. 1212, 1222 (S.D.N.Y.1989). Section 349 does not expressly provide a right of action by one business competitor against another, but it does provide a “right of action to ‘any person who has been injured by reason of any violation of this section.’ ” H2O Swimwear, Ltd. v. Lomas, 164 A.D.2d 804, 560 N.Y.S.2d 19, 21 (1st Dep’t 1990) (quoting § 349(h)). It is clear that “the gravamen of the complaint must be consumer injury or harm to the public interest.” Azby Brokerage, Inc. v. Allstate Ins. Co., 681 F.Supp. 1084, 1089 n. 6 (S.D.N.Y.1988). The critical question, then, is whether the matter affects the public interest in New York, not whether the suit is brought by a consumer or a competitor. Although appellants argue that “there is absolutely nothing in this record showing that this private commercial dispute between the plaintiff and the defendant was aimed at the public,” they" } ]

[ { "docid": "9403315", "title": "", "text": "allegedly deceptive communication was a “complex arrangement[]” between “knowledgeable and experienced parties” and “involving large sums of money,” which was “designed to provide services tailored to meet the [Plaintiffs] wishes and requirements,” 4 K & D Corp. v. Concierge Auctions, LLC, 2 F.Supp.3d 525, 548 (S.D.N.Y.2014) (citations omitted). In other words, it was plainly not the kind of “standard-issue” consumer-oriented transaction that § 349 is intended to protect, id., but rather a “[p]rivate contract dispute[ ], unique to the parties” that does “not fall within the ambit of the statute,” Oswego Laborers’, 85 N.Y.2d at 25, 623 N.Y.S.2d 529, 647 N.E.2d 741. The Court therefore finds that Plaintiff has failed to plead facts plausibly showing that the deceptive acts were directed at consumers, and that its § 349 claim must accordingly be dismissed. The Court is not persuaded otherwise by Plaintiffs citations to cases demonstrating that competitors may have standing to pursue claims under § 349, see Pl. Opp. 37-39, as the propriety of competitor standing has nothing to do with the requirement that the conduct alleged to be deceptive itself be consumer-oriented. The Court is also unmoved by Plaintiffs protests that, as a result of Defendants’ conduct, consumers were “deprived” of access to The Lost Concert. Pl. Opp. 38. The mere fact that consumers were affected by the collapse of the Distribution Agreement does not mean that SATV’s communications to Screenvision were directed to consumers, as they must have been in order for Plaintiffs claim to be cognizable under § 349. See Oswego, 85 N.Y.2d at 25, 623 N.Y.S.2d 529, 647 N.E.2d 741. Finally, the Court admonishes Plaintiff for selectively quoting only the portion of North State Autobahn, Inc. v. Progressive Ins. Grp. Co., 102 A.D.3d 5, 953 N.Y.S.2d 96 (2d Dep’t 2012), stating that, “[o]n its face, [GBL § 349(a)] declares deceptive conduct unlawful without reference to whether [the deceptive conduct] has actually caused specific pecuniary harm to consumers in general,” see PI. Opp.'38 (quoting N. State Autobahn, 953 N.Y.S.2d at 102), when the very next sentence explains that the requirement of “consumer-oriented conduct ... limits the availability" }, { "docid": "648536", "title": "", "text": "1458 [S.D.N.Y.1987]). Based on these two decisions, the Court finds that relief is not available to Bristol-Myers under the anti-dilution statute where the infringement claimed is by a direct competitor selling a similar product. C. The New York “Deceptive Acts and Practices’’ Statute Bristol-Myers contends that by adopting a trade dress intentionally copied from EXCEDRIN PM, McNeil engaged in deceptive acts and practices prohibited by N.Y.Gen.Bus.Law § 349. This statute provides that “[deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful.” In addition to empowering the state attorney general to sue companies on behalf of the state, this provision allows any person “who has been injured by reason of any violation of this section” to sue to enjoin the unlawful act or practice, and to recover the greater of actual damages or fifty dollars (N.Y.Gen.Bus.Law § 349[h]; see Weight Watchers Intern., Inc. v. Stouffer Corp., supra, 744 F.Supp. at p. 1284). In addition to suits by individuals, corporate competitors now have standing to bring a claim under this statutory provision {see Construction Technology, Inc. v. Lockformer Co., Inc., 704 F.Supp. 1212, 1222 [S.D.N.Y.1989]), so long as some harm to the public at large is at issue (Weight Watchers Intern., Inc. v. Stouffer Corp., supra, at p. 1285). The “gravamen of the complaint must be consumer injury or harm to the public interest” (AZBY Brokerage, Inc. v. Allstate Ins. Co., 681 F.Supp. 1084, 1089 n. 6 [S.D.N.Y.1988]). In addition, the plaintiff must prove (1) that the act or practice was misleading in a material way and (2) that the plaintiff was injured. On first glance, Bristol-Myers meets this criteria. “There is no requirement that the plaintiff show specific dollar injury, or to obtain injunctive relief that there even be pecuniary injury at all” {see R. Givens, Practice Commentaries on N.Y.Gen.Bus.Law § 3^9, at p. 569 [McKinney 1988]). However, Givens goes on to state: “[m]ore of the almost equal number of federal cases in which GBL §§ 349 or 350 have been invoked, however" }, { "docid": "17440427", "title": "", "text": "of unfair competition under New York law. See Fed.R.Civ.P. 56(f). 2. Perfect’s Claim of False Advertising Perfect also brings a claim of false advertising pursuant to N.Y.G.B.L. § 350, based on Majestic’s use of the ® symbol after its registration had lapsed. This claim is unavailing. “The goals of GBL §§ 349-350 were major assaults upon fraud against consumers, particularly the disadvantaged ... not adventitious intervention in commercial or trade identification cases brought by one business against another.” Diller v. Steurken, 185 Misc.2d 274, 712 N.Y.S.2d 311, 314 (Sup.Ct.N.Y.Cnty.2000) (internal quotation marks and additional citation omitted). Accordingly, “[e]ourts routinely reject such attempts to fashion Section 349 and 350 claims from garden variety disputes between competitors.” Edward B. Beharry & Co. v. Bedessee Imps., Inc., No. 09-cv-077, 2010 WL 1223590, at *9, 2010 U.S. Dist. LEXIS 27404, at *25 (E.D.N.Y. Mar. 23, 2010) (brackets in original) (citing Winner Int’l v. Kryptonite Corp., No. 95-cv-247, 1996 WL 84476, at *3, 1996 U.S. Dist. LEXIS 2182, at *7 (S.D.N.Y. Feb. 27, 1996) (internal quotation marks omitted)). Thus, where, as here, “[t]he gravamen of plaintiffs complaint is alleged harm to its business interests[, and] not a cognizable harm to the public interest,” no § 350 claim will lie. Edward B. Beharry & Co., 2010 WL 1223590, at *9, 2010 U.S. Dist. LEXIS 27404, at *24. Although Perfect is correct that Majestic erred in continuing to use the ® symbol after its registration had lapsed, it has not adduced any evidence that the public interest was harmed by this inadvertent error. Moreover, “courts have held that trademark cases fall outside the scope of [] New York’s consumer protection statute, reasoning that the public harm that results from trademark infringement is ‘too insubstantial to satisfy the pleading requirements of § 349[,]’” a closely analogous provision. Zip Int’l Grp., LLC v. Trilini Imps., Inc., No. 09-cv-2437, 2011 WL 2132980, at *9 n. 10, 2011 U.S. Dist. LEXIS 55270, at *28 n. 10 (E.D.N.Y. May 24, 2011) (citing Karam Prasad, LLC v. Cache, Inc., No. 07-cv-5785, 2007 WL 2438396, at *2, 2007 U.S. Dist. LEXIS 63052, at *4-5" }, { "docid": "9403316", "title": "", "text": "conduct alleged to be deceptive itself be consumer-oriented. The Court is also unmoved by Plaintiffs protests that, as a result of Defendants’ conduct, consumers were “deprived” of access to The Lost Concert. Pl. Opp. 38. The mere fact that consumers were affected by the collapse of the Distribution Agreement does not mean that SATV’s communications to Screenvision were directed to consumers, as they must have been in order for Plaintiffs claim to be cognizable under § 349. See Oswego, 85 N.Y.2d at 25, 623 N.Y.S.2d 529, 647 N.E.2d 741. Finally, the Court admonishes Plaintiff for selectively quoting only the portion of North State Autobahn, Inc. v. Progressive Ins. Grp. Co., 102 A.D.3d 5, 953 N.Y.S.2d 96 (2d Dep’t 2012), stating that, “[o]n its face, [GBL § 349(a)] declares deceptive conduct unlawful without reference to whether [the deceptive conduct] has actually caused specific pecuniary harm to consumers in general,” see PI. Opp.'38 (quoting N. State Autobahn, 953 N.Y.S.2d at 102), when the very next sentence explains that the requirement of “consumer-oriented conduct ... limits the availability of section 349(a) to cases where the deception pertains to an issue that may bear on a consumer’s decision to participate in a particular transaction,” 953 N.Y.S.2d at 102. X. Conclusion For the foregoing reasons, Defendants’ motion to dismiss or stay the action in deference to the previously filed UK Action is denied, and their motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) is denied with respect to the claim for declaratory judgment, and it is granted with respect to the claims for violation of Section 1 of the Sherman Act, tortious interference with contract, tor-tious interference with prospective economic relations, unfair competition, and violation of New York General Business Law § 349. The parties are hereby ordered to appear for an initial pretrial conference with the Court on November 7, 2014, at 10 am. In accordance with the Court’s Individual Rules, the parties are ordered to ECF file a Proposed Civil Case Management Plan and Scheduling Order (available at http:// nysd.uscourts.gov/judge/Nathan) no later than seven days prior to the" }, { "docid": "21343166", "title": "", "text": "for equitable tolling. Accordingly, the motion to dismiss the RDD plaintiffs’ § 349 claim as time-barred is granted. (ii) The defendants have moved to dismiss for failure to state a claim the § 349 claim by the NCS plaintiffs. Section 349 prohibits “[deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service .... ” N.Y. Gen. Bus. L. § 349(a). To plead a prima facie claim under § 349, the plaintiffs must allege that: “(1) the defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.” Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir. 2000); see also Tasini v. AOL, Inc., 851 F.Supp.2d 734, 742 (S.D.N.Y.), aff'd, 505 Fed.Appx. 45 (2d Cir. 2012) (summary order). The defendants argue that the NCS plaintiffs cannot establish the first two elements of the claim. (a) Although the text of § 349 does not explicitly limit the provision to conduct aimed at consumers, courts have consistently held that “the statute is, at its core, a consumer protection device.” Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir. 1995). Non-consumers, such as business competitors, may have standing to sue under § 349, but “the gravamen of the complaint must be consumer injury or harm to the public interest.” Id. (citation omitted). The plaintiffs must show that “the acts or practices have a broader impact on consumers at large in that they are directed to consumers or that they potentially affect similarly situated consumers.” Spirit Locker, Inc. v. EVO Direct, LLC, 696 F.Supp.2d 296, 302 (E.D.N.Y. 2010) (citation and internal quotation marks omitted); see also Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 65 (2d Cir. 2010) (“[T]o demonstrate the requisite consumer-oriented conduct in a dispute concerning coverage under an insurance policy, a plaintiff must establish facts showing injury or potential injury to the public _”); City of New York v. Smokes-Spirits.Com, Inc., 12 N.Y.3d 616, 883 N.Y.S.2d 772, 911 N.E.2d 834, 839 (2009) (“We ..." }, { "docid": "3989279", "title": "", "text": "provides a private right of action to “[ajny person who has been injured by reason of ...” false advertising under §§ 350 and 350-a. Defendants first argue that plaintiff has no standing to sue under these sections because the New York legislature intended these statutes to provide redress solely for aggrieved consumers, not competitors alleging false advertising. It is true, as Judge Weinfeld noted in Genesco Entertainment v. Koch, 593 F.Supp. 743, 751 (S.D.N.Y.1984), that “Section 349 wears its purpose on its face; it is entitled ‘Consumer Protection From Unfair Acts and Practices.’ ” However, Genesco does not stand for the broad proposition that standing should be limited to consumers. Genesco involved the cancellation of a country and western music concert that the plaintiff sought to hold in Shea Stadium. In dismissing this breach of contract and fraud action, Judge Weinfeld held that “[pjrivate transactions not of a recurring nature or without ramifications for the public at large are not a proper subject of” action under these sections. Thus, the focus is not the status of the plaintiff, but on the nature of the claim asserted. Here, plaintiff claims that defendants engaged in false comparative advertising, a matter certainly affecting the public at large. See Grant Airmass, 645 F.Supp. at 1509; Proctor & Gamble Co. v. Cheesebrough-Pond’s Inc., 588 F.Supp. 1082, 1083 n. 4 (S.D.N.Y.), aff'd, 747 F.2d 114 (2d Cir.1984); Vitabiotics, Ltd. v. Krupka, 606 F.Supp. 779, 785 (E.D.N.Y.1984). See also R. Givens, Practice Commentaries on Gen.Bus. §§ 349, 350 at 569 (McKinney 1988) (“direct deception against ordinary consumers where the chief injury is to the consumer rather than competitors, would appear clearly within the scope of Gen.Bus. §§ 349-350_ Inquiry in such cases thus need focus only on whether deception was practiced, not on any separate ‘public interest’ question. And either the consumer or an injured competitor may sue.”). Defendants, however, argue that the limitation of attorneys’ fees solely to victorious plaintiffs demonstrates that the state legislature could not have meant §§ 349 and 350 to apply to cases involving business competitors. Indeed, the Practice Commentaries warns that:" }, { "docid": "19472977", "title": "", "text": "349 of the GBL, the type of injury alleged by Plaintiff does not appear to rise to the level of harms already recognized. See, e.g., Bose v. Interclick, Inc. , No. 10-CV-9183, 2011 WL 4343517, at *9 (S.D.N.Y. Aug. 17, 2011) (finding that \"courts have recognized ... privacy violations\" to be actionable injuries under section 349 ) (emphasis added); Wood v. Capital One Servs., LLC , 718 F.Supp.2d 286, 292 (N.D.N.Y. 2010) (finding pleading requirements for injury satisfied where plaintiff alleged he suffered from \"humiliation, anger, anxiety, emotional distress, fear, frustration and embarrassment\"); Midland Funding, LLC v. Giraldo , 39 Misc.3d 936, 961 N.Y.S.2d 743, 749 (Dist. Ct. 2013) (listing plaintiff's alleged non-pecuniary injuries including \"[s]leep deprivation; anxiety; nervousness; fear; worry; fright; shock; strain to her marriage; humiliation and intimidation\"). Plaintiff's annoyance at being unable to confidently purchase Defendant's Product does not rise to the type of non-pecuniary injury recognized under New York law. d. New York statutory claims under GBL sections 349 and 350 GBL section 349 prohibits \"[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.\" N.Y. Gen. Bus. Law § 349. GBL section 350 prohibits \"[f]alse advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this state.\" N.Y. Gen. Bus. Law § 350. To assert a claim under either section, \"a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) [the] plaintiff suffered injury as a result of the allegedly deceptive act or practice.\" Orlander v. Staples, Inc. , 802 F.3d 289, 300 (2d Cir. 2015) (citing Koch v. Acker, Merrall & Condit Co. , 18 N.Y.3d 940, 944 N.Y.S.2d 452, 967 N.E.2d 675 (2012) ); see Maurizio v. Goldsmith , 230 F.3d 518, 521 (2d Cir. 2000) (citing the elements for a prima facie case under section 349 ). Claims under GBL sections 349 and 350 are not subject to the pleading-with-particularity requirements of Rule 9(b). Greene , 262 F.Supp.3d at 67" }, { "docid": "15071852", "title": "", "text": "VIII of the FAC asserts claims for deceptive and unlawful practices under New York’s General Business Law § 349 (“§ 349”) against the Company defendants, who have moved to dismiss those claims. To state such a claim, plaintiffs must allege: “(1) the act or practice was consumer-oriented; (2) the act or practice was misleading in a material respect; and (3) the plaintiff was injured as a result.” Spagnola v. Chubb Corp., 574 F.3d 64, 74 (2d Cir.2009). An alleged act is “consumer-oriented” if it has “a broader impact on consumers at large.” Gaidon v. Guardian Life Ins. Co., 94 N.Y.2d 330, 344, 704 N.Y.S.2d 177, 725 N.E.2d 598, 604 (N.Y.1999) (quoting Oswego Laborers’ Local 211 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 623 N.Y.S.2d 529, 647 N.E.2d 741, 744 (N.Y.1995)); see also Allstate Ins. Co. v. Bogoraz, No. 10-CV-5286, 2011 WL 2421045, 2011 U.S. Dist. LEXIS 63721 (E.D.N.Y. June 10, 2011). “Corporate competitors [ ] have standing to bring a claim under this [statute] ... so long as some harm to the public at large is at issue .... ” Gucci America, Inc. v. Duty Free Apparel, Ltd., 277 F.Supp.2d 269, 273 (S.D.N.Y.2003) (quoting Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir.1995)) “[T]he gravamen of the complaint must be consumer injury or harm to the public interest.” Securitron, 65 F.3d at 264. Although plaintiffs bring their § 349 claim on behalf of themselves and other purported class members as consumers of the Company defendants’ advertising and distribution services, each plaintiff is a business, not an individual consumer. As the Company defendants correctly point out, these forms of private transactions between businesses do not fall within the broad consumer protections and public harm considerations contemplated by the subject statute. See, e.g., Spin Master Ltd. v. Bureau Veritas Consumer Prods. Servs., No. 08-CV-923, 2011 WL 1549456, 2011 U.S. Dist. LEXIS 43757 (W.D.N.Y. Mar. 4, 2011) (plaintiffs claims as a consumer of testing services and on behalf of other companies that may require product testing services did not allege “consumer-oriented” conduct by defendants); Federated Retail Holdings, Inc. v." }, { "docid": "8499453", "title": "", "text": "violation by Defendant of section 349; (3) the alleged violations are not independent of the claimed losses alleged by Plaintiffs first cause of action; and (4) the statute of limitations bars six of the nineteen claims at issue. See id. General Business Law § 349 declares unlawful all “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” N.Y. Gen. Bus. Law § 349(a). “ ‘Section 349 governs consumer-oriented conduct and, on its face, applies to virtually all economic activity.’ ” North State Autobahn, Inc. v. Progressive Ins. Group Co., 102 A.D.3d 5, 953 N.Y.S.2d 96, 100 (2d Dep’t 2012) (quoting Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 55, 698 N.Y.S.2d 615, 720 N.E.2d 892 (1999)) (other citations omitted). To successfully assert a claim under General Business Law § 349(h), “a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice.” City of New York v. Smokes-Spirits.Com, Inc., 12 N.Y.3d 616, 621, 883 N.Y.S.2d 772, 911 N.E.2d 834 (2009); see also Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 126 (2d Cir.2007) (citation omitted). 1. Consumer or widespread public injury “[P]arties claiming the benefit of [General Business Law § 349(h) ] must, at the threshold, charge conduct that is consumer oriented.” New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 320, 639 N.Y.S.2d 283, 662 N.E.2d 763 (1995) (citation omitted); see also Gaidon v. Guardian Life Ins. Co. of Am., 94 N.Y.2d 330, 334, 704 N.Y.S.2d 177, 725 N.E.2d 598 (1999) (citation omitted); Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995). “Private contract disputes, unique to the parties ... [do] not fall within the ambit of the statute.” Oswego Laborers’ Local 214 Pension Fund, 85 N.Y.2d at 25, 623 N.Y.S.2d 529, 647 N.E.2d 741 (citation omitted); see also New York Univ., 87 N.Y.2d at 320, 639 N.Y.S.2d" }, { "docid": "3000477", "title": "", "text": "this section ... to enjoin such unlawful act or practice, an action to recover his actual damages or fifty dollars, whichever is greater or both such actions.” Gucci’s motion to dismiss Defendants’ § 349 counterclaim argues that Defendants do not allege Gucci engaged in fraudulent activity that is consumer oriented or has a direct impact on consumers at large. Gucci further maintains that the gravamen of the Defendants’ first counterclaim is not consumer injury or harm to the public interest but, rather, harm to DFA’s business. Defendants respond that “Gucci’s false statements to consumers that their authentic Gucci handbags were counterfeit were misleading and dishonest in a material way. Moreover, [DFA] was injured by Gucci’s consumer-oriented fraudulent conduct.” (Memorandum of Law of Defendants Duty Free Apparel, Ltd. and Joel Soren In Opposition to Plaintiffs Motion to Dismiss Defendants’ Counterclaims dated April 26, 2002 (“Def.Mem.”) at 5.) The Court finds insufficient grounds for Defendants’ § 349 counterclaim. To establish a prima facie case for a claim of deceptive trade practices under N.Y. GBL § 349, a claimant must allege that: “(1) the defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.” Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir.2000) (per curiam); see Capitol Records, Inc. v. Wings Digital Corp., 218 F.Supp.2d 280, 285-86 (S.D.N.Y.2002); Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 623 N.Y.S.2d 529, 647 N.E.2d 741, 744 (1995). “ ‘[C]or-porate competitors now have standing to bring a claim under this [statute] ... so long as some harm to the public at large is at issue ....’” Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir.1995) (quoting Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 786 F.Supp. 182, 215 (E.D.N.Y.), vacated in part on other grounds, 973 F.2d 1033, 1036 (2d Cir.1992)), cert. denied, 516 U.S. 1114, 116 S.Ct. 916, 133 L.Ed.2d 846 (1996). However, when a competitor raises a § 349 claim, “[i]t is clear that ‘the gravamen of the complaint must be consumer injury" }, { "docid": "16674432", "title": "", "text": "have violated N.Y. Gen. Bus. Law § 349. The statute proscribes “[d]e-ceptive acts or practices in the conduct of any business, trade or commerce.” N.Y. Gen. Bus. Law § 349. “To make out a prima facie case under Section 349, a plaintiff must demonstrate that (1) the defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.” Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir.2000) (citing Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25, 647 N.E.2d 741, 744, 623 N.Y.S.2d 529, 532 (1995)). A competitor may sue under Section 349, as long as “the gravamen of the complaint [is] consumer injury or harm to the public interest.” Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir.1995) (internal quotations and citations omitted). A number of courts have held that “ ‘trademark cases are outside the scope of this general consumer protection statute,’ ” reasoning that the public harm that results from trademark infringement is “too insubstantial to satisfy the pleading requirements of § 349.” Karam Prasad, LLC v. Cache, Inc., No. 07-cv-5785, 2007 WL 2438396, at *2 (S.D.N.Y. Aug. 27, 2007) (quoting Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC, 221 F.Supp.2d 410, 413 n. 2 (S.D.N.Y.2002)) (collecting cases). Indeed, plaintiff asserts that it has incurred damages from lost business. However, the statute requires that plaintiff demonstrate some harm to the consumer or public at large. Because defendants’ goods originate from the same manufacturer as plaintiffs goods, and because plaintiff is unable to show a difference in the quality control standards of defendants’ goods, plaintiff has not shown that defendants’ goods are not genuine. In this situation, plaintiff has failed to show any consumer harm whatsoever. Accordingly, defendants’ cross-motion with respect to plaintiffs Section 349 claim is granted. d. Plaintiffs claims under N.Y. Gen. Bus. Law § 350 Both parties cross-move for summary judgment on plaintiffs claim that defendants have violated N.Y. Gen. Bus. Law § 350. Section 350 proscribes “[fjalse advertising in the conduct of" }, { "docid": "16420326", "title": "", "text": "UCL as well. See Kelin, 202 Cal.App.4th at 1382, 137 Cal.Rptr.3d 293 (“The standard for determining whether a representation is ‘fraudulent’ under the UCL applies equally to claims arising under the CLRA.”). For these reasons, I DENY Nissan’s motion to dismiss Ms. Johnson’s claim unaer the UCL. B. California’s Consumer Legal Remedies Act Ms. Johnson brings a separate claim for violation of the CLRA in Count Four of the First Amended Complaint. For the reasons stated above, Ms. Johnson’s allegations are sufficient to state a claim under the CLRA based on fraudulent omission or concealment and may proceed. C. New York General Business Law Sections 349 (Deceptive Acts and Practices) and 350 (False Advertising) New York’s General Business Law, Section 349, declares unlawful “[deceptive acts or practices in the conduct of business, trade or commerce or in the furnishing of any service in this state.” N.Y. Gen. Bus. L. § 349. Section 350 likewise deems “false advertising in the conduct of any business, trade or commerce” unlawful. N.Y. Gen. Bus. L. § 350. In order to state a claim under Section 349, a plaintiff must allege “(1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice.” City of New York v. Smokes-Spirits.Com, Inc., 12 N.Y.3d 616, 883 N.Y.S.2d 772, 911 N.E.2d 834, 838 (2009). The requirements under Section 350 are substantially the same. See Andre Strishak & Assocs., P.C. v. Hewlett Packard Co., 300 A.D. 2d 608, 609, 752 N.Y.S.2d 400 (N.Y. App. Div. 2002). An act is “consumer oriented” when “the acts or practices have a broader impact on consumers at large.” Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 623 N.Y.S.2d 529, 647 N.E.2d 741, 744 (1995). Plaintiff need not establish defendant’s intent to defraud or mislead in order to state a claim, nor need plaintiff establish justifiable reliance. Id., 623 N.Y.S.2d 529, 647 N.E.2d at 745. New York courts have adopted “an objective definition of deceptive acts and practices, whether representations or omissions, limited to those likely" }, { "docid": "18253637", "title": "", "text": "been injured by reasons of a violation of [sections 349 and 350] of this article may bring an action in his own name.” Krasnyi Oktyabr, Inc. v. Trilini Imports, No. CV-05-5359, 2007 WL 1017620, at *12 (E.D.N.Y. Mar. 30, 2007) (citations omitted); see N.Y. Gen. Bus. Law § 349(h) (“[A]ny person who has been injured by reason of any violation of this section may bring an action in his own name .... ”); N.Y. Gen. Bus. Law § 350e-(3) (“Any person who has been injured by reason of any violation of [section 350] may bring an action in his own name .... ”). The Second Circuit has noted that “corporate competitors ... have standing to bring a claim ... so long as some harm to the public at large is at issue.” Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 257 (2d Cir.1995) (quoting Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 786 F.Supp. 182, 215 (E.D.N.Y.), vacated in part on other grounds, 973 F.2d 1033 (2d Cir.1992)); see also, City of New York v. Cyco.Net, Inc., 383 F.Supp.2d 526, 561-62 (S.D.N.Y.2005); Constr. Tech., Inc. v. Lockformer Co., 704 F.Supp. 1212, 1222 (S.D.N.Y.1989). “The critical question” in assessing a suit by a corporate competitor “is whether the matter affects the public interest in New York, not whether the suit is brought by a consumer or a competitor.” Securitron, 65 F.3d at 257. Although defendants argue that the plaintiff has failed to allege any harm to the public at large, it is clear that a significant portion of the injury at issue in the instant claim is an injury to the public. That is, if plaintiffs allegations are true, the defendants are defrauding the state of tax revenue and inducing consumers to violate tax laws by purchasing unstamped cigarettes, thereby exposing those consumers to criminal fines. These allegations are sufficient to establish plaintiffs standing to sue under sections 349 and 350. The defendants also argue that plaintiff has failed to state a claim for relief under sections 349 and 350 because it has failed to assert any misleading or deceptive act, practice, or" }, { "docid": "3000476", "title": "", "text": "dismissing claims raised by a plaintiff. See MTV Networks, a Div. of Viacom Int’l, Inc. v. Curry, 867 F.Supp. 202, 203 (S.D.N.Y.1994); Reeves v. American Broad. Cos., 580 F.Supp. 84, 89-90 (S.D.N.Y.1983), aff'd, 719 F.2d 602 (2d Cir.1983). On a Rule 12(b)(6) motion to dismiss for failure to state a claim, a Court accepts all well-pleaded factual assertions as true and draws all reasonable inferences in favor of the non-moving party. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); McGinty v. State of New York, 193 F.3d 64, 68 (2d Cir.1999). B. DEFENDANTS’ COUNTERCLAIM PURSUANT TO N.Y. GBL § §19 Defendants’ first counterclaim alleges a violation of N.Y. GBL § 349(a). That provision prohibits “[deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state ....” To carry out the purposes of § 349(a), N.Y. GBL § 349(h) recognizes a cause of action for “any person who has been injured by any violation of this section ... to enjoin such unlawful act or practice, an action to recover his actual damages or fifty dollars, whichever is greater or both such actions.” Gucci’s motion to dismiss Defendants’ § 349 counterclaim argues that Defendants do not allege Gucci engaged in fraudulent activity that is consumer oriented or has a direct impact on consumers at large. Gucci further maintains that the gravamen of the Defendants’ first counterclaim is not consumer injury or harm to the public interest but, rather, harm to DFA’s business. Defendants respond that “Gucci’s false statements to consumers that their authentic Gucci handbags were counterfeit were misleading and dishonest in a material way. Moreover, [DFA] was injured by Gucci’s consumer-oriented fraudulent conduct.” (Memorandum of Law of Defendants Duty Free Apparel, Ltd. and Joel Soren In Opposition to Plaintiffs Motion to Dismiss Defendants’ Counterclaims dated April 26, 2002 (“Def.Mem.”) at 5.) The Court finds insufficient grounds for Defendants’ § 349 counterclaim. To establish a prima facie case for a claim of deceptive trade practices under N.Y. GBL § 349, a" }, { "docid": "18253638", "title": "", "text": "383 F.Supp.2d 526, 561-62 (S.D.N.Y.2005); Constr. Tech., Inc. v. Lockformer Co., 704 F.Supp. 1212, 1222 (S.D.N.Y.1989). “The critical question” in assessing a suit by a corporate competitor “is whether the matter affects the public interest in New York, not whether the suit is brought by a consumer or a competitor.” Securitron, 65 F.3d at 257. Although defendants argue that the plaintiff has failed to allege any harm to the public at large, it is clear that a significant portion of the injury at issue in the instant claim is an injury to the public. That is, if plaintiffs allegations are true, the defendants are defrauding the state of tax revenue and inducing consumers to violate tax laws by purchasing unstamped cigarettes, thereby exposing those consumers to criminal fines. These allegations are sufficient to establish plaintiffs standing to sue under sections 349 and 350. The defendants also argue that plaintiff has failed to state a claim for relief under sections 349 and 350 because it has failed to assert any misleading or deceptive act, practice, or advertisement. However, as discussed in relation to the plaintiffs Lanham Act claims, while wholesalers continue to sell unstamped cigarettes to Indian retailers, a non-Indian consumer purchasing from an Indian retailer remains responsible for paying taxes on those cigarettes. Accordingly, to the extent that plaintiffs allegations are true and the defendants advertise that their cigarettes are tax-free, this is misrepresentation, as it is likely to mislead the consumer into believing that he or she need not pay taxes on purchased cigarettes. Thus, Gristede’s has properly alleged a misleading and deceptive act, practice or advertisement under sections 349 and 350. 1. Plaintiffs claims are limited by a three-year statute of limitations When a federal court presides over supplemental state law claims, state substantive law controls. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Statute of limitations is part of New York substantive law. See e.g. Cantor Fitzgerald Inc. v. Lutnick, 313 F.3d 704," }, { "docid": "9911936", "title": "", "text": "district.”); but see In re Oot, 112 B.R. 497, 502 (Bkrtcy.N.D.N.Y.1989) (ruling that because N.Y. C.P.L.R. § 901(b) is a proce dural rule, the court was bound to apply Fed.R.Civ.P. 23); In re Peters, 90 B.R. 588, 594 (same). I concur and therefore plaintiffs’ Donnelly Act claims will not be certified. C. N.Y. Gen. Bus. §§ 349, 350 1. The Statutes Plaintiffs’ seventh cause of action alleges violations of N.Y. Gen. Bus. Law §§ 349 and 350, which respectively prohibit “deceptive acts or practices” and “false advertising” “in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” “To state a claim for deceptive practices under either section, a plaintiff must show: (1) that the act, practice or advertisement was consumer-oriented; (2) that the act, practice or advertisement was misleading in a material respect, and (3) that the plaintiff was injured as a result of the deceptive practice, act or advertisement.” Pelman v. McDonald’s Corp., 237 F.Supp.2d 512, 525 (S.D.N.Y.2003) (‘Pelman I” ). To aid in the interpretation of the second element, the New York Court of Appeals has instructed that a deceptive act or practice has an “objective definition,” whereby deceptive acts or practices — which may be acts or omissions — are “limited to those likely to mislead a reasonable consumer acting reasonably under the circumstances.” Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 26, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995). In other words, a violation of either section requires that the defendant’s conduct deceive a reasonable consumer in a material respect, work a harm to the public at large, and directly cause the plaintiffs injury. However, the plaintiff need not demonstrate that the defendant acted intentionally or with scien-ter. Id. In addition, § 350 requires — unlike § 349 — that the plaintiff must demonstrate reliance on the allegedly false advertising. Small v. Lorillard Tobacco Co., Inc., 252 A.D.2d 1, 679 N.Y.S.2d 593, 599 (1st Dep’t 1998), aff'd, 94 N.Y.2d 43, 698 N.Y.S.2d 615, 720 N.E.2d 892 (1999); see also Stutman v." }, { "docid": "14025940", "title": "", "text": "courts may have considered it desirable to limit § 349(a) to cases involving threats to public health or safety.” FiberMark’s Memorandum dated Sept. 6, 2005, at 12; see e.g., Greenlight Capital, Inc. v. Greenlight (Switz.) S.A., No. 04 Civ. 3136(HB), 2005 WL 13682, *6, 2005 U.S. Dist. Lexis *2, at 23 (S.D.N.Y. Jan. 3, 2005) (dismissing Section 349 claim because the harm alleged was confusion on the part of investors, brokers, and others in the financial services industry, not harm to the public at large); Gucci America, Inc. v. Duty Free Apparel, Ltd., 277 F.Supp.2d 269, 274 (S.D.N.Y.2003) (dismissing Section 349 claim because lost profits and a general loss of good will from consumers are harm to a business as opposed to the public at large); Sports Traveler, Inc. v. Advance Magazine Publishers, No. 96 Civ. 5150(JFK), 1997 WL 137443, at *3 (S.D.N.Y. Mar.24, 1997) (dismissing Section 349 claim because “[a]l-though Plaintiff also claims that the alleged infringement has created consumer confusion, the complaint is devoid of allegations supporting an inference that the public’s health or safety is at stake as a result of the alleged infringement.”). There is no evidence in this case of any harm to the public’s health or safety. There was insufficient - evidence that Brownville’s actions affected the public interest or that Brownville’s actions harmed consumers in New York. As there is legally insufficient evidence supporting the jury finding, even when viewed in the light most favorable to the nonmoving party, the jury findings on this claim cannot stand. Even if the converters can be the “consumers at large,” this claim cannot stand because there was insufficient evidence of misleading those consumers. Boule v. Hutton, 328 F.3d 84, 94 (2d Cir.2003) (quoting Marcus v. AT&T Corp., 138 F.3d 46, 64 (2d Cir.1998)) (“An act is deceptive within the meaning of the New York statute only if it is likely to mislead a reasonable consumer.”). The converters knew who they were buying from. “[T]here can be no section 349(a) claim when the allegedly deceptive practice was fully disclosed.” Broder v. MBNA Corp., 281 A.D.2d 369, 722" }, { "docid": "11719945", "title": "", "text": "an injured person has been defined as one who was misled of deceived by such an advertisement.” McDonald v. North Shore Yacht Sales, Inc., 134 Misc.2d 910, 513 N.Y.S.2d 590, 593 (1987). Defendants contend that Galerie Furstenberg was not misled or deceived by their advertisements, and is therefore not an injured person who has standing to sue for false advertising. Although Galerie Furstenberg does not allege injury to itself or the general public in its complaint , it now argues that it has been injured by defendants’ attempts “to bilk unsuspecting art purchasers by means of counterfeiting activities” which have caused “consumer insecurity as to the genuineness of all Dali drawings.” (Plaintiffs Memorandum, p. 53) Competitors, as well as consumers, are given the right to sue under N.Y.Gen. Bus.Law § 350-d. “[T]he purpose of the private rights of action was to permit ‘private enforcement’ against ‘injuries resulting from consumer fraud_’ [DJirect deception against ordinary consumers, where the chief injury is to the consumer rather than competitors, would appear clearly within the scope of GBL §§ 349-350.” Practice Commentary to Article 22-A, Consumer Protection from Deceptive Acts and Practices, p. 566, 569. Id. at 572. However, a competitor’s right to sue depends “on the nature of the primary injury —i.e., to the public or consumers, including to a business in the role of consumer....” (emphasis in original). For that reason [Trademark or “trade dress” infringement claims or commercial disputes involving individually negotiated contracts ... fall outside the original intent of §§ 349 and 350.... Allowing use of GBL §§ 349-350 in such trade identification cases would bring the “one-way” prevailing plaintiff attorney’s fee provisions of § 349(h) and § 350-d to bear in a context totally different from that originally contemplated. Id. at 567, 570 (emphasis in original). Since the gist of Galerie Furstenberg’s claim is that, as defendants’ competitor, it was injured by defendants’ wrongful reproduction of artwork for which it holds exclusive licenses, it may not recover under section 350. With respect to the City of New York’s Consumer Protection Law (Admin. Code, Chap. 5, Subchap. 1 §§ 20-700-04)," }, { "docid": "16406562", "title": "", "text": "868 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678, 129 S.Ct. 1937. A. N.Y. General Business Law §§ 349 and 350 New York General Business Law (“GBL”) § 349 declares unlawful “[deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service.” N.Y. Gen. Bus. Law § 349(a). “A plaintiff under section 349 must prove three elements: first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material'way; and third, that the plaintiff suffered injury as a result of the deceptive act[.]” Stutman v. Chem. Bank, 95 N.Y.2d 24, 709 N.Y.S.2d 892, 731 N.E.2d 608, 611 (2000). The second element requires, whether it is a representation or omission, that the defendant’s misleading or deceptive conduct is “likely to mislead a reasonable consumer acting reasonably under the circumstances.” Id., 709 N.Y.S.2d 892, 731 N.E.2d at 611-12. “A claim of false advertising under Section 350 must meet all of the same elements as a claim under Section 349, and the plaintiff must further demonstrate proof of actual reliance.” Merck Eprova AG v. Brookstone Pharm., LLC, 920 F.Supp.2d 404, 425 (S.D.N.Y.2013); see also Morrissey v. Nextel Partners, Inc., 72 A.D.3d 209, 895 N.Y.S.2d 580, 588 (2010). “Claims under GBL §§ 349 and 350 are not subject to the pleading-with-particularity requirements of Fed.R.Civ.P. 9(b)[,]” Ackerman v. Coca-Cola Co., No. CV-09-0395 (JG)(RML), 2010 WL 2925955, at *22 (E.D.N.Y. July 21, 2010), and thus are subject to the notice-pleading requirements of Fed. R.Civ.P. 8(a), see Pelman ex rel. Pelman v. McDonald’s Corp., 396 F.3d 508, 511 (2d Cir.2005); Leonard v. Abbott Labs., Inc., No. 10-CV-4676 (ADS)(WDW), 2012 WL 764199, at *18 (E.D.N.Y. Mar. 5, 2012). Nevertheless, even under Rule 8, the plaintiff has failed to plead with the requisite “plausibility” that any of the defendants’ claims were materially misleading. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (where the plaintiffs “have not nudged their claims across the line from" }, { "docid": "14025938", "title": "", "text": "upon which the jury could have concluded that Brownville’s acts were consumer oriented. First, as noted, there was insufficient evidence of direct sales by Brownville or FiberMark of pressboard or imitation pressboard products to end-users. Second, there was insufficient other evidence that Brownville’s acts were aimed at consumers (end-users). See Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir.2000) (“To make out a prima facie case under Section 349, a plaintiff must demonstrate that ... the defendant’s deceptive acts were directed at consumers.”). Third, there was insufficient evidence that any consumer in New York was deceived. Goshen v. Mut. Life Ins. Co. of New York, 98 N.Y.2d 314, 746 N.Y.S.2d 858, 774 N.E.2d 1190 (2002) (“[T]he transaction in which the consumer is deceived must occur in New York.... [T]he deception of a consumer must occur in New York”). Fourth, this case entails “claims that arise out of a trademark infringement action, and disputes between competitors where the core of the claim is harm to another business as opposed to consumers.” Gucci America, Inc. v. Duty Free Apparel, Ltd., 277 F.Supp.2d 269, 273 (S.D.N.Y.2003). In such situations, “courts have found [ ] a public harm that is too insubstantial to satisfy the ... requirements of § 349.” Id. The only time courts have found indirect interaction with consumers to fall within the purview of § 349 is when the deceptive acts or practices involve threats to public health or safety. See e.g. Securitron Mag-nalock Corp. v. Schnabolk, 65 F.3d 256 (2d Cir.1995) (holding that the plaintiff had adequately shown harm to the public interest, in part because defendants “gave false information ... [to] a regulatory agency primarily concerned with the safety of the public.”); Sports Traveler, Inc. v. Advance Magazine Publishers, No. 96 Civ. 5150(JFK), 1997 WL 137443, at *2 (S.D.N.Y. Mar.24, 1997) (“[Federal courts have interpreted the statute’s scope as limited to the types of offenses to the public interest that would trigger Federal Trade Commission intervention under 15 U.S.C. § 45, such as potential danger to the public health or safety.”). Even Plaintiff concedes that “commentators and federal district" } ]

[ { "docid": "23454051", "title": "", "text": "these facts, could a rational trier of fact find that Olympia was a victim of monopolization? The offense of monopolization under section 2 of the Sherman Act requires proof of monopoly power (the power to raise prices without losing so much business that the price increase is unprofitable, see, e.g., Ball Memorial Hospital, Inc. v. Mutual Hospital Ins., Inc., 784 F.2d 1325, 1335 (7th Cir.1986)) plus conduct designed to maintain or enhance that power improperly. See, e.g., United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1703-04, 16 L.Ed.2d 778 (1966); Aspen Skiing Co. v. Aspen Highlands Skiing Corp., — U.S. -, 105 S.Ct. 2847, 2854 n. 19, 86 L.Ed.2d 467 (1985). Olympia’s complaint also charges attempted monopolization, but in a case such as this where the plaintiff presents (as we shall see) adequate evidence of monopoly power, he can get no mileage out of charging attempted as well as completed monopolization. Conduct lawful for a monopolist is lawful for a firm attempting to become a monopolist. 3 Areeda & Turner, Antitrust Law 11828a (1978). So far as terminal equipment is concerned, viewed separately from telex service, it seems inconceivable that Western Union could have had monopoly power in 1975. Then as now a vast array of terminals was available to telex subscribers, of which the 90,000 terminals owned by Western Union were only a tiny fraction. Western Union was not even a manufacturer of terminals. It was a jobber for Teletype Corporation; and but for Western Union’s position as sole provider of telex service— an essential qualification, as we are about to see — anyone else could have bought the same terminals from Teletype Corporation and sold them in competition with Western Union. But if Western Union had monopoly power over telex service, it could use that power to curtail competition in the complementary equipment market. Although Western Union was the sole provider of telex service after acquiring TWX in 1971, this gave it monopoly power only if there were no close substitutes for telex. Almost certainly there were. Even as far back as 1968 —" } ]

[ { "docid": "16570065", "title": "", "text": "of agreement). No evidence indicates that counter-defendants participated in or otherwise affected IBT’s decisions concerning the sale of listing information to Haines or other publishers. The agreement does not restrict IBT’s alternate uses of the listing information. Any use of IBT’s listing information to restrain trade in the street address directory market in the Chicago area resulted from IBT’s independent action. Independent action cannot constitute a Section 1 violation. See Famous Brands, Inc. v. David Sherman Corp., 814 F.2d 517, 523 (8th Cir.1987). There is no genuine issue of material fact that counter-defendants violated Section 1 of the Sherman Act. Section 2 of the Sherman Act In Counts I, II and III of the counterclaim, Haines contends that counter-defendants violated Section 2 of the Sherman Act by attempting to monopolize, conspiring to monopolize, and monopolizing the use of the listing information in the street address directory market in the Chicago metropolitan area. Counterclaim ¶¶ 15, 20, 27. Section 2 of the Sherman Act renders [ejvery person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states ... guilty of a misdemeanor. 15 U.S.C. § 2. To prove monopolization, Haines must show: (1) that counter-defendants possess monopoly power, or the power to control output and prices in the relevant market, and (2) that counter-defendants willfully engaged in conduct designed to acquire, maintain or enhance its monopoly power. Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir.1980). To establish a claim for attempted monopolization, Haines must show: (1) specific intent to control prices or destroy competition with respect to a part of commerce; (2) predatory or anticompetitive conduct directed to accomplishing the unlawful purpose; and (3) a dangerous probability of success. Great Escape, Inc. v. Union City Body Co., Inc., 791 F.2d 532, 540 (7th Cir.1986). To prove counter-defendants conspired to monopolize, Haines must show: (1) the existence of a combination or conspiracy; (2) overt acts in furtherance of the conspiracy; (3) an effect upon a" }, { "docid": "9406600", "title": "", "text": "Brady possessed significant power in the relevant market, which includes all wire marking systems. Therefore, Lem’s claim that the contracts contain unreasonable customer assignments must fail. E. Monopolization And Attempt To Monopolize As stated earlier in this opinion, in order to prove monopolization in violation of Sherman Act Section 2, an antitrust plaintiff must show that the defendant possesses monopoly power in the relevant market and is engaged in conduct designed to acquire, maintain or enhance its monopoly power improperly. Olympia Equipment, 797 F.2d at 373; Chillicothe, 615 F.2d at 430. Lem presented evidence at trial that Brady possesses approximately fifty percent of the alleged relevant market for pressure-sensitive, card-mounted wire markers. According to Lem, considering the structure of this market, and Brady’s allegedly wrongful conduct in filing this suit, tying its Markermatic with its wire marker cards, entering into blanket contracts, attempting to get the business of Lem’s private brand distributors and keeping close watch over Lem’s activities, Brady clearly wrongfully monopolized the relevant market. Once again, Lem’s failure to prove that the relevant market consists only of card-mounted, pressure-sensitive wire markers proves fatal to its claim. Lem presented no evidence at trial regarding Brady’s share, or the structure, of the market of all wire marking systems. Lem therefore failed to demonstrate that Brady wrongfully monopolized the relevant market. Furthermore, even were the court to assume that the relevant market is limited to a submarket of card-mounted, pressure-sensitive wire markers, Lem’s claim would still fail. A manufacturer which possesses fifty percent of the market may not necessarily possess monopoly power. See United States v. Grinnell Corp., 384 U.S. 563, 571, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778 (1966) (holding that courts may infer the existence of monopoly power from the fact that the defendant holds a “predominant” share, such as 80, 87 or 90 percent, of the market); United States v. United States Steel Corp., 251 U.S. 417, 40 S.Ct. 293, 64 L.Ed. 343 (1920) (defendant’s control of 50 percent of market insufficient to establish market power). Also, the fact that Stranco, Lem and Panduit entered the card-mounted, pressure-sensitive" }, { "docid": "9406569", "title": "", "text": "foreign nations.” 15 U.S.C. § 2. In order to prove monopolization, a plaintiff must show, first, that the defendant possesses monopoly power, the power to control output and prices, in the relevant market. Olympia Equipment Leasing Co. v. Western Union Telegraph Co., 797 F.2d 370, 373 (7th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1574, 94 L.Ed.2d 765 (1987); Ball Memorial Hospital, Inc. v. Mutual Hospital Insurance, Inc., 784 F.2d 1325, 1334-36 (7th Cir.1986); Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir.1980). Second, the plaintiff must demonstrate that the defendant engaged in conduct designed to. acquire, maintain or enhance its monopoly power improperly. Olympia Equipment, 797 F.2d at 373; Chillicothe, 615 F.2d at 430. A company attempts to monopolize in violation of Section 2 when it engages in a course of conduct which would, if successful, accomplish monopolization, and which, though falling short, so closely approaches monopolization as to create a dangerous probability of it. Lektro-Vend, 660 F.2d at 269-70. In order to prove attempt to monopolize, a plaintiff must show: (1) a specific intent to monopolize; (2) predatory or anticompetitive conduct in furtherance of the purpose to monopolize; and (3) a dangerous probability of success in the relevant market. Lektro-Vend, 660 F.2d at 270; Chillicothe, 615 F.2d at 430. 3. Price Discrimination Under The Robinson-Patman Act Section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13(a), makes it unlawful for any person engaged in commerce to discriminate in price, directly or indirectly, between different purchasers of commodities of like grade and quality, where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce. Section 2(a) does not prohibit price differentials based on differences in the cost of manufacture, sale or delivery. Also, under Section 2(b), a seller may rebut a prima facie price discrimination case with evidence that it set its price in good faith to meet an equally low price of a competitor. Primary-line Robinson-Patman cases, such as the present case, involve" }, { "docid": "9477046", "title": "", "text": "LFM eventually terminated their relationships with Mercatus, but the Hospital has followed through on only some, but not all, of its offers to those practice groups. B. Lack of Evidence of Predatory Conduct On appeal, Mercatus argues that this conduct was not protected by Noerr-Pennington and was not (as the district court concluded) mere speech outside the scope of the antitrust laws. Although we agree with Mercatus on both points, Mercatus has failed to present sufficient evidence that the Hospital’s actions constituted actual or attempted monopolization under the Sherman Act. See Professional Real Estate Investors, 508 U.S. at 61, 113 S.Ct. 1920 (noting that “even a plaintiff who defeats [a] defendant’s claim to Noerr immunity ... must still prove a substantive antitrust violation”). To prove actual monopolization of a market, Mercatus must show (1) that the Hospital possessed monopoly power in that market; and (2) that the Hospital willfully acquired or maintained that power by means other than the quality of its product, its business acumen, or historical accident. Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir.1980). To prove attempted monopolization, Mercatus must show (1) the Hospital’s specific intent to achieve monopoly power in a relevant market; (2) predatory or anticompetitive conduct directed to accomplishing this purpose; and (3) a dangerous probability that the attempt at monopolization will succeed. Lektro-Vend Corp. v. The Vendo Co., 660 F.2d 255, 270 (7th Cir. 1981). The second element of each claim can be met by showing that the Hospital engaged in predatory or anticompetitive conduct of some kind. See Chillicothe Sand & Gravel, 615 F.2d at 430; American Academic Suppliers, Inc. v. Beckley-Cardy, Inc., 922 F.2d 1317, 1320 (7th Cir. 1991) (“The offense of monopolization is the acquisition of monopoly by improper methods or, more commonly ... the abuse of monopoly, the latter occurring for example when a monopolist by pricing below cost succeeds in repelling or intimidating new entrants or extending his monopoly into new markets.”); State of Illinois ex rel. Burris v. Panhandle Eastern Pipe Line Co., 935 F.2d 1469, 1481 (7th Cir. 1991)" }, { "docid": "1549567", "title": "", "text": "to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States ... guilty of a misdemeanor_” 15 U.S.C. § 2. For attempt to monopolize the plaintiff must prove: “(1) specific intent to control prices or destroy competition with respect to a part of commerce, (2) predatory or anti-competitive conduct directed to accomplishing the unlawful purpose, and (3) a dangerous probability of success.” Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir.1980) (quoting Gough v. Rossmoor Corp., 585 F.2d 381, 390 (9th Cir.1978), cert. denied, 440 U.S. 936, 99 S.Ct. 1280, 59 L.Ed.2d 494 (1979)). For conspiracy to monopolize the plaintiff must prove 1) the existence of a combination or conspiracy, 2) overt acts in furtherance of the conspiracy, 3) an effect upon a substantial amount of interstate commerce and 4) the existence of specific intent to monopolize. J.T. Gibbons, Inc. v. Crawford Fitting Co., 704 F.2d 787 (5th Cir.1983); Clair Olsen & Guitar City Studios, Inc. v. Progressive Music Supply, Inc., 703 F.2d 432 (10th Cir.1983); Safecard Services, Inc. v. Dow Jones & Co., Inc., 537 F.Supp. 1137, 1144 (E.D.Va.1982), aff'd, 705 F.2d 445 (4th Cir.), cert. denied, 464 U.S. 831, 104 S.Ct. 109, 78 L.Ed.2d 111 (1983); Kintner, Federal Antitrust Law 434 (1980). Specific intent to monopolize is an element of both offenses. Because there is no evidence of specific intent here summary judgment was properly granted on these claims. All lawful competition aims to defeat and drive out competitors. Therefore, the mere intention to exclude competition and to expand one’s own business is not sufficient to show a specific intent to monopolize. See Pacific Engineering & Production Co. v. Kerr-McGee Corp., 551 F.2d 790, 795 (10th Cir.), cert. denied, 434 U.S. 879, 98 S.Ct. 234, 54 L.Ed.2d 160 (1977) (specific intent cannot be inferred from conduct even though its effect was to drive defendant’s only competitor out of business); General Communications Engineering, Inc. v. Motorola Communications & Electronics, Inc., 421 F.Supp. 274 (N.D.Cal.1976). The court in General Communications" }, { "docid": "9406567", "title": "", "text": "Enterprises, Inc., 776 F.2d 185, 188 (7th Cir.1985). Over the years, courts have found certain types of contractual arrangements unreasonable as a matter of law, because they pose an unacceptable risk of stifling competition. Jefferson Parish Hospital District No. 2 v. Hyde, 466 U.S. 2, 9, 104 S.Ct. 1551, 1556, 80 L.Ed.2d 2 (1984). Courts presume that these “per se” illegal arrangements are unreasonable without inquiring as to whether the arrangement has had an anticompetitive effect in the relevant market. Jefferson Parish, 466 U.S. at 15-16, 104 S.Ct. at 1560; Brillhart v. Mutual Medical Insurance Co., 768 F.2d 196, 199 n. 2 (7th Cir.1985); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1108 (7th Cir.1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985). Anti-competitive effect is still a requirement in these cases; however, courts conclusively presume anticompetitive effect because the type of conduct complained of is obviously destructive of free competition. LektroVend Corp. v. Vendo Co., 660 F.2d 255, 265 n. 11 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982); Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 555 (7th Cir.1980). Where the conduct complained of is of a type with which courts have had little experience, or a type which is not manifestly anticompetitive, courts analyzing the conduct under Section 1 apply the rule of reason standard. United States Trotting Association v. Chicago Downs Association, Inc., 665 F.2d 781, 787-90 (7th Cir.1981). The rule of reason standard requires the plaintiff to show that the defendant’s conduct caused an anticompetitive effect in the relevant market. LektroVend, 660 F.2d at 268. Courts have traditionally applied the rule of reason standard in the majority of Section 1 challenges to allegedly anticompetitive contracts, combinations and conspiracies. U.S. Trotting, 665 F.2d at 787. 2. Sherman Act Section 2 Violations Under Section 2 of the Sherman Act, no person may “monopolize, or attempt to monopolize, of combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with" }, { "docid": "9406568", "title": "", "text": "102 S.Ct. 1277, 71 L.Ed.2d 461 (1982); Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 555 (7th Cir.1980). Where the conduct complained of is of a type with which courts have had little experience, or a type which is not manifestly anticompetitive, courts analyzing the conduct under Section 1 apply the rule of reason standard. United States Trotting Association v. Chicago Downs Association, Inc., 665 F.2d 781, 787-90 (7th Cir.1981). The rule of reason standard requires the plaintiff to show that the defendant’s conduct caused an anticompetitive effect in the relevant market. LektroVend, 660 F.2d at 268. Courts have traditionally applied the rule of reason standard in the majority of Section 1 challenges to allegedly anticompetitive contracts, combinations and conspiracies. U.S. Trotting, 665 F.2d at 787. 2. Sherman Act Section 2 Violations Under Section 2 of the Sherman Act, no person may “monopolize, or attempt to monopolize, of combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations.” 15 U.S.C. § 2. In order to prove monopolization, a plaintiff must show, first, that the defendant possesses monopoly power, the power to control output and prices, in the relevant market. Olympia Equipment Leasing Co. v. Western Union Telegraph Co., 797 F.2d 370, 373 (7th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1574, 94 L.Ed.2d 765 (1987); Ball Memorial Hospital, Inc. v. Mutual Hospital Insurance, Inc., 784 F.2d 1325, 1334-36 (7th Cir.1986); Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir.1980). Second, the plaintiff must demonstrate that the defendant engaged in conduct designed to. acquire, maintain or enhance its monopoly power improperly. Olympia Equipment, 797 F.2d at 373; Chillicothe, 615 F.2d at 430. A company attempts to monopolize in violation of Section 2 when it engages in a course of conduct which would, if successful, accomplish monopolization, and which, though falling short, so closely approaches monopolization as to create a dangerous probability of it. Lektro-Vend, 660 F.2d at 269-70. In order to prove attempt to monopolize," }, { "docid": "16570066", "title": "", "text": "or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several states ... guilty of a misdemeanor. 15 U.S.C. § 2. To prove monopolization, Haines must show: (1) that counter-defendants possess monopoly power, or the power to control output and prices in the relevant market, and (2) that counter-defendants willfully engaged in conduct designed to acquire, maintain or enhance its monopoly power. Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir.1980). To establish a claim for attempted monopolization, Haines must show: (1) specific intent to control prices or destroy competition with respect to a part of commerce; (2) predatory or anticompetitive conduct directed to accomplishing the unlawful purpose; and (3) a dangerous probability of success. Great Escape, Inc. v. Union City Body Co., Inc., 791 F.2d 532, 540 (7th Cir.1986). To prove counter-defendants conspired to monopolize, Haines must show: (1) the existence of a combination or conspiracy; (2) overt acts in furtherance of the conspiracy; (3) an effect upon a substantial amount of interstate commerce; and (4) the existence of specific intent to monopolize. Id. at 540-41. Section 2 offenses require evidence of a specific intent to monopolize. Id. The mere intention to exclude competition and to expand one’s own business is not sufficient to prove a specific intent to monopolize. Id. Specific intent may be inferred from predatory conduct, or conduct that is in itself an independent violation of the antitrust laws or that has no legitimate business justification other than to destroy or damage competition. Id. Counter-defendants argue that Haines has failed to present evidence of a specific intent to monopolize or predatory conduct. To establish predatory conduct, Haines alleges that counter-defendants entered into an agreement whereby Donnelley would obtain listing information at a lower cost than that charged to Haines. Counterclaim 1113(a). The record does not establish that Don-nelley paid less for listing information than Haines. In 1983, IBT billed Haines $55,-155.78 for 1,968,421 listings at .028 cents per listing. In 1984, IBT billed Haines $61,904.27 for 1,996,912 listings at .031 cents" }, { "docid": "23650649", "title": "", "text": "has emphasized, however, that summary judgment may be especially appropriate in an antitrust case because of the chill antitrust litigation can have on legitimate price competition. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 594-95, 106 S.Ct. 1348, 1360, 89 L.Ed.2d 538 (1986). For this reason, an antitrust plaintiff opposing a motion for summary judgment must present evidence that tends to exclude the possibility that the defendant’s conduct was as consistent with competition as with illegal conduct. Id. at 588, 106 S.Ct. at 1357. A. Indiana Grocery, then, must first establish that a genuine issue of material fact exists that Kroger attempted to monopolize the Indianapolis retail grocery market. According to Indiana Grocery, Kroger used entry of Super Valu’s Cub stores into Indianapolis as a “cover” for its attempt to monopolize the area market through a predatory pricing scheme. To prove attempted monopolization under section 2 of the Sherman Act, a plaintiff must show (1) specific intent to achieve monopoly power, (2) predatory or anticompetitive conduct directed to accomplishing this unlawful purpose, and most important for purposes of this case, (3) a dangerous probability that the attempt to monopolize will be successful. Lektro-Vend Corp. v. The Vendo Co., 660 F.2d 255, 270 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982); Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir.1980). The “dangerous probability” element of the attempted monopolization offense reflects the well-established notion that section 2 of the Sherman Act governs single-firm conduct only when it threatens actual monopolization. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767, 104 S.Ct. 2731, 2739, 81 L.Ed.2d 628 (1984). The Sherman Act protects competition, not competitors, and does not reach conduct that is only unfair, impolite, or unethical. United States v. American Airlines, Inc., 743 F.2d 1114, 1119 (5th Cir.1984), cert. dismissed, 474 U.S. 1001, 106 S.Ct. 420, 88 L.Ed.2d 370 (1985). As we recently emphasized in Ball Memorial Hospital, Inc. v. Mutual Hospital Insurance, Inc., 784 F.2d 1325 (7th Cir.1986), [c]ompetition is a ruthless process. A firm" }, { "docid": "9406570", "title": "", "text": "a plaintiff must show: (1) a specific intent to monopolize; (2) predatory or anticompetitive conduct in furtherance of the purpose to monopolize; and (3) a dangerous probability of success in the relevant market. Lektro-Vend, 660 F.2d at 270; Chillicothe, 615 F.2d at 430. 3. Price Discrimination Under The Robinson-Patman Act Section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13(a), makes it unlawful for any person engaged in commerce to discriminate in price, directly or indirectly, between different purchasers of commodities of like grade and quality, where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce. Section 2(a) does not prohibit price differentials based on differences in the cost of manufacture, sale or delivery. Also, under Section 2(b), a seller may rebut a prima facie price discrimination case with evidence that it set its price in good faith to meet an equally low price of a competitor. Primary-line Robinson-Patman cases, such as the present case, involve a complaining competitor of the allegedly discriminating seller and focus on competitive injury in the seller’s market. Federal Trade Commission v. Anheuser-Busch, Inc., 363 U.S. 536, 544-46, 80 S.Ct. 1267, 1271-72, 4 L.Ed.2d 1385 (1960); O’Byme v. Checker Oil Co., 727 F.2d 159, 165 (7th Cir.1984). 4. Relevant Market An antitrust plaintiff must delineate the “relevant market” in Sherman Act Section 1 claims analyzed under the rule of reason, Fishman, 807 F.2d at 531, in Sherman Act Section 2 monopolization claims, Id., in Sherman Act Section 2 attempted monopolization claims, LektroVend, 660 F.2d at 270, and in some Robinson-Patman price discrimination claims, United States v. E.L DuPont De Nemours & Co., 353 U.S. 586, 593, 77 S.Ct. 872, 877, 1 L.Ed.2d 1057 (1957); National Dairy Products Corp. v. F.T.C., 412 F.2d 605, 612-13 (7th Cir.1969). The relevant market consists of both a geographic and a product market. See, e.g., Fishman, 807 F.2d at 531; Kaiser Aluminum & Chemical Corp. v. F.T.C., 652 F.2d 1324, 1329 (7th Cir.1981). A relevant geographic market is the area in" }, { "docid": "2479625", "title": "", "text": "power as to them. COUNTS 3 AND 4 Attempt to Monopolize the Gas Sales Market To prove that Panhandle unlawfully attempted, under Section 2 of the Sherman Act, 15 U.S.C. § 2, and under Section 3 of the Illinois Antitrust Act, Ill.Rev.Stat. ch. 38, H 60-3(3), to monopolize the gas sales market in Illinois, the Plaintiff must have established each of the following by a preponderance of the evidence: 1. the existence and scope of a relevant market within which the defendant competed; 2. predatory or anticompetitive conduct by the defendant directed to accomplishing the unlawful purpose; 3. that defendant acted with the specific intent to control prices or destroy competition; 4. a dangerous probability of successfully monopolizing the relevant market; and 5. that defendant’s anticompetitive acts caused antitrust injury to plaintiff. See, Chillicothe Sand & Gravel v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir.1980); Lektro-Vend Corp. v. Vendo Co., 660 F.2d at 270. See also, Lorain Journal Co. v. United States, 342 U.S. 143, 153, 72 S.Ct. 181, 186, 96 L.Ed. 162 (1951); Photovest, 606 F.2d at 711. The relevant market submarket is the sale of natural gas to G and SG LDC customers in a 37 county area in Central Illinois served exclusively by Panhandle (plus conservation and alternate fuels). Further, Panhandle had sufficient market power that it could reasonably have been able to create a monopoly in the relevant market. The Plaintiff has not proven that Panhandle engaged in predatory and anticom-petitive conduct directed to achieving or maintaining a monopoly. Since the Sherman Act does not list or define the specific activities which constitute the offense of attempted monopolization, it is necessary to examine the facts of each case, bearing in mind that the determination of what constitutes an attempt to monopolize “is a question of proximity and degree.” Swift & Co. v. United States, 196 U.S. 375, 402, 25 S.Ct. 276, 281, 49 L.Ed. 518 (1905). In the words of the Seventh Circuit, one must “consider the firm’s capacity to commit the offense, the scope of its objective, and the character of its conduct." }, { "docid": "2479624", "title": "", "text": "residential/commercial members of the class, Panhandle did not engage in willful conduct in order to maintain its monopoly power. Panhandle was under no antitrust duty to negotiate a new tariff. Rather, the G tariff under which natural gas was provided to those consumers through the LDC’s was valid and enforceable, especially under the chaotic and fluid circumstances which existed in the industry during the relevant time period. Because the G LDC’s were not allowed to transport under the Guidelines, the residential/commercial customers behind the LDC’s cannot use the provisions of the Guidelines to establish Panhandle’s antitrust liability as to them. Therefore, the Court finds for the Defendant on the proprietary claims and representative claims for the industrial end-users under Counts I and II on the grounds that Plaintiff has not proved by a preponderance of the evidence that Panhandle held monopoly power as to either. Likewise, the Court finds for the Defendant on the representative claims of the residential/commercial customers on the grounds that Panhandle’s conduct did not constitute willful acquisition or maintenance of monopoly power as to them. COUNTS 3 AND 4 Attempt to Monopolize the Gas Sales Market To prove that Panhandle unlawfully attempted, under Section 2 of the Sherman Act, 15 U.S.C. § 2, and under Section 3 of the Illinois Antitrust Act, Ill.Rev.Stat. ch. 38, H 60-3(3), to monopolize the gas sales market in Illinois, the Plaintiff must have established each of the following by a preponderance of the evidence: 1. the existence and scope of a relevant market within which the defendant competed; 2. predatory or anticompetitive conduct by the defendant directed to accomplishing the unlawful purpose; 3. that defendant acted with the specific intent to control prices or destroy competition; 4. a dangerous probability of successfully monopolizing the relevant market; and 5. that defendant’s anticompetitive acts caused antitrust injury to plaintiff. See, Chillicothe Sand & Gravel v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir.1980); Lektro-Vend Corp. v. Vendo Co., 660 F.2d at 270. See also, Lorain Journal Co. v. United States, 342 U.S. 143, 153, 72 S.Ct. 181, 186, 96 L.Ed. 162" }, { "docid": "9406599", "title": "", "text": "that Brady engaged in resale price maintenance in its blanket contracts with distributors. As previously stated, Brady’s distributors were free to set the prices in their contracts with customers as they saw fit. Brady recommended, but did not set, the resale price. Therefore, Brady did not engage in resale price fixing in its blanket contracts with distributors. See Morrison, 797 F.2d at 1435. Each blanket contract did, however, restrict sales to a certain customer. A supplier may impose a customer restriction, as long as the restriction is reasonable. Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977); Morrison, 797 F.2d at 1435. As in all rule of reason analyses, in order to establish that a customer assignment is unreasonable, a plaintiff must first prove that the supplier had significant market power, which is the power to raise prices above the competitive level in the relevant market without losing profits from reduced sales. Morrison, 797 F.2d at 1435. Lem did not present any evidence at trial that Brady possessed significant power in the relevant market, which includes all wire marking systems. Therefore, Lem’s claim that the contracts contain unreasonable customer assignments must fail. E. Monopolization And Attempt To Monopolize As stated earlier in this opinion, in order to prove monopolization in violation of Sherman Act Section 2, an antitrust plaintiff must show that the defendant possesses monopoly power in the relevant market and is engaged in conduct designed to acquire, maintain or enhance its monopoly power improperly. Olympia Equipment, 797 F.2d at 373; Chillicothe, 615 F.2d at 430. Lem presented evidence at trial that Brady possesses approximately fifty percent of the alleged relevant market for pressure-sensitive, card-mounted wire markers. According to Lem, considering the structure of this market, and Brady’s allegedly wrongful conduct in filing this suit, tying its Markermatic with its wire marker cards, entering into blanket contracts, attempting to get the business of Lem’s private brand distributors and keeping close watch over Lem’s activities, Brady clearly wrongfully monopolized the relevant market. Once again, Lem’s failure to prove that the relevant" }, { "docid": "23463981", "title": "", "text": "facts of this case are not compelling, primarily because we agree with the district court that the main purpose of the transaction was legitimate, and the covenants were enforced reasonably with respect to time, geographic scope, and product. Therefore, we cannot find any impact upon competition beyond that which Vendo had a right to restrain in order to protect its legitimate interests. II. THE SECTION 2 SHERMAN ACT CLAIM Section 2 of the Sherman Act proscribes attempted monopolization which has been described as “the employment of methods, means and practices which would, if successful, accomplish monopolization, and which, though falling short, nevertheless approach so close as to create a dangerous probability of it” American Tobacco Co. v. United States, 328 U.S. 781, 785, 66 S.Ct. 1125,1127, 90 L.Ed. 1575 (1946) (jury instruction approved by Supreme Court). The proof requires (1) a specific intent to monopolize, i. e., to gain the power to control prices or to exclude competition in a line of commerce, Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir. 1980), (2) predatory or anticompetitive acts engaged in to further the purpose to monopolize, and (3) a dangerous probability of success in the relevant market which requires evidence that the defendant had sufficient market power to have been reasonably able to create a monopoly, Mullis v. Arco Petroleum Corp., 502 F.2d 290, 297 (7th Cir. 1974); von Kalinowski, 2 Antitrust Laws & Trade Regulation § 9.01[2] at p. 9-7 (1979). Chillicothe, 615 F.2d at 430. We agree with the district court that the plaintiffs have failed to establish even one of the three required elements. A. Dangerous Probability of Success The district court first rejected the plaintiffs’ contention that Vendo possessed sufficient market power to create a dangerous probability of achieving monopoly status. The court noted that while Vendo’s sales and profits had increased overall between 1955 and 1966, sales had declined from 61 million to 52 million and profits had dropped from 3.1 million to 1.9 million between 1960 and 1963. These were the initial years of the “fabulous sixties” —" }, { "docid": "4608433", "title": "", "text": "in trademark infringement or unfair competition, the court concludes that the Miller Brewing Company is not liable to Anheuser-Busch Incorporated for trademark dilution under the Illinois Anti-Dilution Act, Ill.Rev.Stat. ch. 140, § 22. D. ATTEMPT TO MONOPOLIZE 56. Under Section 2 of the Sherman Act, no person may “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations ...” 15 U.S.C. § 2. 57. A company attempts to monopolize in violation of Section 2 when it engages in a course of conduct which would, if successful, accomplish monopolization, and which, though falling short, so closely approaches monopolization as to create a dangerous probability of it. See Lektro-Vend Corporation v. Vendo Company, 660 F.2d 255, 269-70 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). (1) Elements of Claims 58. In order to prove an attempt to monopolize, a plaintiff must prove by a preponderance of the evidence: (1) a specific intent to achieve a monopoly in a relevant market; (2) predatory or anticompetitive conduct in furtherance of the purpose to monopolize; and (3) a dangerous probability of success in the relevant market. See Lektro-Vend Corporation v. Vendo Company, 660 F.2d 255, 270 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982); Chillicothe Sand & Gravel Company v. Martin Marietta Corporation, 615 F.2d 427, 430 (7th Cir.1980). These elements are conjunctive. See Conoco, Inc. v. Inman Oil Company, Inc., 774 F.2d 895, 906 (8th Cir.1985). 59. The test to be applied in determining whether a trademark is being unlawfully used to confer a monopoly in a certain product is the same as in any other case wherein an unlawful monopoly, or attempt to monopolize, is alleged under Section 2 of the Sherman Act. There is a violation of that provision only if the defendant’s actions have led to or resulted in a dangerous probability that it will gain a monopoly over the relevant market. See Car-Freshner Corporation v. Auto" }, { "docid": "4608432", "title": "", "text": "(7th Cir.), cert. denied, 469 U.S. 1019, 105 S.Ct. 434, 83 L.Ed.2d 361 (1984); W.H. Brady Company v. Lem Products, Inc., 659 F.Supp. 1355, 1368 (N.D.Ill.1987). 53. The protections of the Illinois Anti-Dilution Statute are unavailable to a competitor which cannot obtain relief under the laws of trademark infringement or unfair competition. See EZ Loader Boat Trailers, Inc. v. Cox Trailers, Inc., 746 F.2d 375, 380 (7th Cir.1984), citing Filter Dynamics International, Inc. v. Astron Battery, Inc., 19 Ill.App.3d 299, 314-15, 311 N.E.2d 386, 398-99 (1974); Victory Pipe Craftsmen, Inc. v. Faberge, Inc., 582 F.Supp. 551, 559 (N.D.Ill.1984). 54. Having found that the LA mark is not distinctive and that, by using the LA mark, Heileman did not engage in trademark infringement or unfair competition, the court concludes that the G. Heileman Brewing Company, Inc. is not liable to Anheuser-Busch Incorporated for trademark dilution under the Illinois Anti-Dilution Act, Ill.Rev.Stat. ch. 140, § 22. 55. Having found that the LA mark is not distinctive and that, by using the LA mark, Miller did not engage in trademark infringement or unfair competition, the court concludes that the Miller Brewing Company is not liable to Anheuser-Busch Incorporated for trademark dilution under the Illinois Anti-Dilution Act, Ill.Rev.Stat. ch. 140, § 22. D. ATTEMPT TO MONOPOLIZE 56. Under Section 2 of the Sherman Act, no person may “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations ...” 15 U.S.C. § 2. 57. A company attempts to monopolize in violation of Section 2 when it engages in a course of conduct which would, if successful, accomplish monopolization, and which, though falling short, so closely approaches monopolization as to create a dangerous probability of it. See Lektro-Vend Corporation v. Vendo Company, 660 F.2d 255, 269-70 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). (1) Elements of Claims 58. In order to prove an attempt to monopolize, a plaintiff must prove by a preponderance of the evidence: (1)" }, { "docid": "9477047", "title": "", "text": "Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir.1980). To prove attempted monopolization, Mercatus must show (1) the Hospital’s specific intent to achieve monopoly power in a relevant market; (2) predatory or anticompetitive conduct directed to accomplishing this purpose; and (3) a dangerous probability that the attempt at monopolization will succeed. Lektro-Vend Corp. v. The Vendo Co., 660 F.2d 255, 270 (7th Cir. 1981). The second element of each claim can be met by showing that the Hospital engaged in predatory or anticompetitive conduct of some kind. See Chillicothe Sand & Gravel, 615 F.2d at 430; American Academic Suppliers, Inc. v. Beckley-Cardy, Inc., 922 F.2d 1317, 1320 (7th Cir. 1991) (“The offense of monopolization is the acquisition of monopoly by improper methods or, more commonly ... the abuse of monopoly, the latter occurring for example when a monopolist by pricing below cost succeeds in repelling or intimidating new entrants or extending his monopoly into new markets.”); State of Illinois ex rel. Burris v. Panhandle Eastern Pipe Line Co., 935 F.2d 1469, 1481 (7th Cir. 1991) (“Section 2 forbids not the intentional pursuit of monopoly power but the employment of unjustifiable means to gain that power.”). Turning to Mercatus’ submissions to this court, we see little to indicate why the Hospital’s actions might be considered anticompetitive or predatory. This issue is never really addressed in Mercatus’ opening brief, which focuses primarily on arguing that Noerr-Pennington immunity does not apply. And Mercatus’ bare claim that the Hospital’s conduct “prevented [Mercatus’] entry and reduced competition” simply does not suffice. After all, many kinds of conduct may prevent or discourage a potential competitor from entering a particular market. Federal antitrust laws are implicated only when that conduct is predatory or unjustifiable. See, e.g., Burris, 935 F.2d at 1481 (“Section 2 forbids not the intentional pursuit of monopoly power but the employment of unjustifiable means to gain that power.”). To the extent that Mercatus addresses this issue, it only further muddies what are already murky waters. Its reply brief argues that the Hospital “tortiously violated Mercatus’ no-shop agreements.” The Hospital was not party to those" }, { "docid": "4608434", "title": "", "text": "a specific intent to achieve a monopoly in a relevant market; (2) predatory or anticompetitive conduct in furtherance of the purpose to monopolize; and (3) a dangerous probability of success in the relevant market. See Lektro-Vend Corporation v. Vendo Company, 660 F.2d 255, 270 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982); Chillicothe Sand & Gravel Company v. Martin Marietta Corporation, 615 F.2d 427, 430 (7th Cir.1980). These elements are conjunctive. See Conoco, Inc. v. Inman Oil Company, Inc., 774 F.2d 895, 906 (8th Cir.1985). 59. The test to be applied in determining whether a trademark is being unlawfully used to confer a monopoly in a certain product is the same as in any other case wherein an unlawful monopoly, or attempt to monopolize, is alleged under Section 2 of the Sherman Act. There is a violation of that provision only if the defendant’s actions have led to or resulted in a dangerous probability that it will gain a monopoly over the relevant market. See Car-Freshner Corporation v. Auto Aid Manufacturing Corporation, 438 F.Supp. 82, 87 (N.D.N.Y.1977). 60. In general, the power that manufacturers have over their trademarked products is not the power that makes an illegal monopoly. See United States v. E.I. du Pont de Nemours & Company, 351 U.S. 377, 393, 76 S.Ct. 994, 1006, 100 L.Ed. 1264 (1956). SPECIFIC INTENT: 61. In the context of an attempted monopoly claim, specific intent refers not to the defendant’s general intent to do a particular act, but to an overall anticompetitive intent expressed through its actions to destroy competition and to build monopoly. See Times-Picayune Publishing Company v. United States, 345 U.S. 594, 626, 73 S.Ct. 872, 890, 97 L.Ed. 1277 (1953). 62. The specific intent element requires proof that the defendant acted with the purpose of achieving monopoly power in the relevant market. Specific intent does not merely mean intent to prevail over one’s rivals; it goes beyond that to include an intent to control prices or to restrain competition unreasonably. See Aspen Skiing Company v. Aspen Highlands Skiing Corporation, 472 U.S. 585," }, { "docid": "23650650", "title": "", "text": "and most important for purposes of this case, (3) a dangerous probability that the attempt to monopolize will be successful. Lektro-Vend Corp. v. The Vendo Co., 660 F.2d 255, 270 (7th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982); Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir.1980). The “dangerous probability” element of the attempted monopolization offense reflects the well-established notion that section 2 of the Sherman Act governs single-firm conduct only when it threatens actual monopolization. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767, 104 S.Ct. 2731, 2739, 81 L.Ed.2d 628 (1984). The Sherman Act protects competition, not competitors, and does not reach conduct that is only unfair, impolite, or unethical. United States v. American Airlines, Inc., 743 F.2d 1114, 1119 (5th Cir.1984), cert. dismissed, 474 U.S. 1001, 106 S.Ct. 420, 88 L.Ed.2d 370 (1985). As we recently emphasized in Ball Memorial Hospital, Inc. v. Mutual Hospital Insurance, Inc., 784 F.2d 1325 (7th Cir.1986), [c]ompetition is a ruthless process. A firm that reduces costs and expands sales injures rivals — sometimes fatally. The firm that slashes costs the most captures the greatest sales and inflicts the greatest injury. The deeper the injury to rivals, the greater the potential benefit. These injuries to rivals are byproducts of vigorous competition, and the antitrust laws are not balm for rivals’ wounds. Id. at 1338. This is not to say that injury to rival firms cannot ever lead to injury to consumers and that section 2 of the Sherman Act cannot be used to prevent such injury. But section 2 must be used with the greatest caution. Action that injures rivals may ultimately injure consumers, but it is also perfectly consistent with competition, and to deter aggressive conduct is to deter competition. Thus, the plaintiff faces a stiff burden in any section 2 litigation. “It is not enough that a single firm appears to restrain trade unreasonably, for even a vigorous competitor may leave that impression. For instance, an efficient firm may capture unsatisfied customers from an inefficient rival, whose" }, { "docid": "1549566", "title": "", "text": "either factually or legally. We agree with the defendants that this contention is merely an invitation to second-guess the business judgment of C & J as to which travel agency it prefers. Further, plaintiff’s argument that Great Escape will be forced out of business and that this development will have an anticompetitive effect through loss of an option for consumers is similarly without merit. As we stated in Products Liability Insurance Agency v. Crum & Forster Insurance Companies, 682 F.2d 660, 663 (7th Cir.1982), “there is a sense in which eliminating even a single competitor reduces competition. But it is not the sense that is relevant in deciding whether the antitrust laws have been violated.” Competition means that some may be forced out of business. The antitrust laws are not designed to guarantee every competitor tenure in the marketplace. III. Plaintiff also claims that the defendants violated Section 2 of the Sherman Act by conspiring to monopolize and attempting to monopolize interstate trade and commerce. Section 2 makes “[ejvery person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States ... guilty of a misdemeanor_” 15 U.S.C. § 2. For attempt to monopolize the plaintiff must prove: “(1) specific intent to control prices or destroy competition with respect to a part of commerce, (2) predatory or anti-competitive conduct directed to accomplishing the unlawful purpose, and (3) a dangerous probability of success.” Chillicothe Sand & Gravel Co. v. Martin Marietta Corp., 615 F.2d 427, 430 (7th Cir.1980) (quoting Gough v. Rossmoor Corp., 585 F.2d 381, 390 (9th Cir.1978), cert. denied, 440 U.S. 936, 99 S.Ct. 1280, 59 L.Ed.2d 494 (1979)). For conspiracy to monopolize the plaintiff must prove 1) the existence of a combination or conspiracy, 2) overt acts in furtherance of the conspiracy, 3) an effect upon a substantial amount of interstate commerce and 4) the existence of specific intent to monopolize. J.T. Gibbons, Inc. v. Crawford Fitting Co., 704 F.2d 787 (5th Cir.1983); Clair Olsen & Guitar City Studios," } ]

[ { "docid": "4744521", "title": "", "text": "v. Derwinski, 1 Vet.App. 118, 120-21 (1991); Fugere v. Derwinski, 1 Vet.App. 103, 108-09 (1990) (quotations omitted); Payne, at 87; Bentley v. Derwinski, 1 Vet.App. 28, 31 (1990). If, in considering this question upon remand, the BVA determines that venous thrombosis is not service connected, it must give adequate reasons or bases to clearly and completely explain and support its position. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990) (quotations omitted); Sammarco v. Derwinski, 1 Vet.App. 111, 113-14 (1991). B. 38 C.F.R. § 4.59 (1990), which addresses arthritic pain, states in relevant part: With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing etc. on pressure or manipulation, should be carefully noted and definitely related to affected joints.... It is the intention to recognize actually painful, ... joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.... Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. (Emphasis added.) The statements made by appellant about pain in his VA Form 1-9, must also be evaluated as evidence within the context of § 4.59. See Hatlestead v. Derwinski, 1 Vet.App. 164, 169 (1991). Just as it ignored the issue discussed in section A of this opinion, the BVA also ignored this issue. If the evidence is to be believed, it appears that appellant would be entitled to a “minimum compensable rating for the joint” (10 percent under 38 C.F.R. § 4.71, Diagnostic Code 5003). This Court has repeatedly ruled that the BVA cannot ignore evidence. See, e.g., Webster v. Derwinski, 1 Vet.App. 155, 159 (1991). Should the BVA determine that the evidence is not credible, it will have to provide sufficient reasons or bases for discrediting it. See Gilbert, at 57. III. For the reasons given above, the decision of the BVA is vacated and remanded for proceedings consistent with this opinion. On remand, the BVA should determine whether the evidence in the" } ]

[ { "docid": "10148450", "title": "", "text": "the factors causing disability of the joints, which includes the lumbar spine, the inquiry must be directed toward, inter alia, “[p]ain on movement.” Thus, in this case, it was necessary for the BVA to address both the existence and extent of appellant’s pain, as well as any limitation of motion due to his service-connected disabilities. Under the regulations, the “functional loss due to pain is to be rated at the same level as the functional loss where flexion is impeded.” Schafrath, 1 Vet.App. at 592. The Board’s decision fails to consider or discuss how regulations 4.40 and 4.45(f) apply to the facts presented in this case. Although appellant’s complaints of pain appear throughout the record, including his sworn testimony in 1990 that he experienced constant back pain, the Board failed to mention the extent of any functional loss due to pain with regard to his service-connected disabilities. While the reports of the March 1990 VA examination and the November 1990 examination by Dr. LaCour noted the veteran’s complaints of pain, they did not discuss the impact of any pain on the functional loss in appellant’s low back and hip. In its decision the Board specifically noted the limitation of motion found during the March 1990 VA examination; however, it failed to make any findings as to the extent of appellant’s pain on motion. Thus, not only did the Board fail to analyze the effect of his pain on his disability, it also relied on a VA medical examination which failed to adhere to the mandate of 38 C.F.R. § 4.40 that examinations upon which ratings are based adequately portray functional loss due to pain, and determine whether pain “was evidenced by the visible behavior of the claimant,” as described in 38 C.F.R. § 4.45(f). See Quarles, 3 Vet.App. at 140. III. CONCLUSION It is the duty of the BVA, not the Court, to assess the credibility of the veteran’s sworn testimony and to address appellant’s complaints of pain to determine functional loss under 38 C.F.R. § 4.40. Moyer v. Derwinski, 2 Vet.App. 289, 294 (1992); Schafrath, 1 Vet.App. at 593;" }, { "docid": "7004988", "title": "", "text": "the BVA, ... we cannot overturn them.” Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). In addition, as set forth in 38 U.S.C. § 7104(d)(1), the BVA is required to provide adequate reasons or bases for its findings and conclusions on all material issues of fact or law. See Gilbert, 1 Vet.App. at 56-57. Establishing service connection on a secondary basis requires a showing that a disability “is proximately due to or the result of a service-connected disease or injury.” 38 C.F.R. § 3.310(a) (1997). Accordingly, because the appellant claims that his alleged knee disorder was caused by his service-connected pes planus, he must show service connection for the knee disorder on a second ary basis, which requires evidence that there is a knee disability that is proximately due to or the result of his service-connected disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a). The appellant argues on appeal that although the “Board claimed to have considered the medical reports of Drs. Kennon, Mead and Jackson ... it discredited the reports of these doctors on the grounds that ‘they did not provide any objective findings referable to specific knee disability or render any diagnosis as to which the veteran’s complaints could be attributed.’” Appellant’s Brief (Br.) at 9. The appellant further argues that the Board improperly concluded that there was no probative evidence to establish a knee disability caused or aggravated by his service-connected pes planus based on Dr. Shipp’s finding that the appellant’s knees were normal. Id. First, there is no clinical evidence of knee pain to support the statements of Drs. Mead and Jackson. Dr. Jackson’s examination of the appellant’s knees on January 13, 1976, revealed “crepitation on flexion and extension” but the examination provided no impression or diagnosis concerning the knees. R. at 117. During the examination of the appellant’s knees on May 3, 1993, Dr. Mead commented that there was mild crepitation through range of motion but no instability, effusion, or specific tenderness. R. at 199. At this time, Dr. Mead also expressed his uncertainty as to the etiology of the appellant’s knee pain unless" }, { "docid": "11940584", "title": "", "text": "atrophy, the condition of the skin, absence of normal callosity[,] or the like. 38 C.F.R. § 4.40 (1994); see also 38 C.F.R. § 4.45 (1994) (directing that painful motion must be considered part of disability when .rating joints for purposes of disability benefits); cf. DeLuca v. Brown, 8 Vet.App. 202, 205-06 (1995) (Court rejected Secretary’s argument that regulation specifying rating based on limitation of motion ipso facto also included rating for pain). DC 5003 and 38 C.F.R. § 4.59 deem painful motion of a major joint or groups caused by degenerative arthritis that is established by X-ray evidence to be limited motion even though a range of motion may be possible beyond the point when pain sets in. See Lichtenfels, 1 VetApp. at 488. In this case, the record contains references to hip pain and stiffness since at least the January 1991 personal hearing. R. at 342; see R. at 368. The Board considered the applicability of all the regulations regarding pain, including 38 C.F.R. §§ 4.40, 4.45, and 4.59, as well as DC 5003, but found that the appellant’s complaints of hip pain were not persuasive. Hicks, BVA 94-00760, at 7. The Board based its finding on a 1982 VA rating examination report. Hicks, BVA 94-00760, at 7. In that report, a VA physician stated: [T]he patient has multiple somatic complaints with minimal objective changes on the physical examination which makes this examiner[ ] suspect a psychogenic overlay in his symptomatology. On present examination, there is no evidence of any neurologic deficit and in my opinion, he does not have symptoms of nerve.root irritation in the cervical area. Also, there is no evidence of thoracic outlet syndrome on present exam. The paresthesias he describes in a glove distribution in the upper extremities[ ] is of course a subjective symptom, but as above, there are no objective neurological changes. R. at 203. The Board’s reliance on the August 1982 VA examination is flawed because that examination was not intended to evaluate any complaints of hip pain. Nor could that examination have been able to evaluate the appellant’s right and left" }, { "docid": "23447325", "title": "", "text": "38 C.F.R. § 19.120(a) (1990)] to allow [him] to present written and/or oral arguments” before the BVA. Br. at 6. Without this information, he contends, he “was not able to bring forth any argument or challenge to the applicable law and regulations”. Br. at 5-6. He further maintains that under 38 C.F.R. § 19.182(a) (1990) the BVA is required to remand a case to the regional office when a procedural defect needs correction. The Secretary concedes that the Statement of the Case was technically deficient, but claims that this was not “prejudicial error” since correspondence from VA had apprised the veteran of the essence of the regulations and the types of evidence needed to sustain his claim for individual unem-ployability. Br. of Appellee at 18. II. ANALYSIS In order to enable a claimant to understand a BVA decision and the reasons behind it, including “the precise bases for that decision [and] the Board’s response to the various arguments advanced by the claimant” (Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990)), as well as to assist in judicial review, the BVA is required by 38 U.S.C. § 4004(d)(1) (1988) to include in its decisions a written statement of the Board’s findings and conclusions and the “reasons or bases” for those findings and conclusions. Gilbert, 1 Vet.App. at 57; Sammarco v. Derwinski, 1 Vet.App. 111, 114 (1991). “[T]he Board must identify those findings it deems crucial to its decision and account for the evidence which it finds to be persuasive or unpersuasive.” Ibid. The BVA decision here includes neither an analysis of the credibility or probative value of the evidence submitted by or on behalf of the veteran in support of his claim nor any explanation of the Board’s conclusion that he is not unemployable according to VA regulations. First, the Board failed to express the “reasons or bases” for its assessment of the lay evidence from the appellant and his wife. In Gilbert, we remanded the case in part because the BVA decision contained “neither an analysis of the credibility or probative value of the evidence submitted by or on behalf" }, { "docid": "10148451", "title": "", "text": "impact of any pain on the functional loss in appellant’s low back and hip. In its decision the Board specifically noted the limitation of motion found during the March 1990 VA examination; however, it failed to make any findings as to the extent of appellant’s pain on motion. Thus, not only did the Board fail to analyze the effect of his pain on his disability, it also relied on a VA medical examination which failed to adhere to the mandate of 38 C.F.R. § 4.40 that examinations upon which ratings are based adequately portray functional loss due to pain, and determine whether pain “was evidenced by the visible behavior of the claimant,” as described in 38 C.F.R. § 4.45(f). See Quarles, 3 Vet.App. at 140. III. CONCLUSION It is the duty of the BVA, not the Court, to assess the credibility of the veteran’s sworn testimony and to address appellant’s complaints of pain to determine functional loss under 38 C.F.R. § 4.40. Moyer v. Derwinski, 2 Vet.App. 289, 294 (1992); Schafrath, 1 Vet.App. at 593; Ferraro v. Derwinski, 1 Vet.App. 326, 330 (1991); Hatlestad, 1 Vet.App. at 167. Thus, the BVA decision is VACATED and the matter REMANDED for a determination of whether appellant is entitled to an increased rating for his service-connected left femur fracture residuals and for his residuals of a compression fracture at LI and spondylolis-thesis at L5-S1 based on functional loss due to pain. If adequate pathology is not present in the record for the BVA to reach a determination, the Board shall order a medical examination, upon which it shall base its ultimate conclusions. See Green v. Derwinski, 1 Vet.App. 121 (1991); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.59, 4.70 (1992)." }, { "docid": "8330251", "title": "", "text": "and severity contemplated by the pertinent criteria for a higher evaluation. He retains some motion of the back, sciatic notch tenderness is not elicited, and neurologic abnormalities are not shown to be incapacitating. It is our opinion the overall level of impairment is compatible with no more than a 40 percent rating. Ferraro, loc. no. 005163, at 5. The Board did not address the information provided by appellant in his Report of Medical Examination for Disability Evaluation. Appellant stated that he was in constant pain and unable to do any physical activity. According to the examination, appellant was suffering from muscle spasms. Appellant’s pain was not adequately addressed by the Board. Under 38 C.F.R. § 4.40 (1990), the VA has a duty to determine functional loss which includes evaluating a veteran’s pain. The Board failed to apply this regulation which this Court deems necessary to determining a disability rating for a disability involving the musculoskeletal system. See Hatlestad v. Derwinski, 1 Vet.App. 164, 167 (1991). Under Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991), the “BVA panels must consider only independent medical evidence to support their findings rather than provide their own medical judgment in the guise of a Board opinion.” As this Court stated in Colvin, at 175: If the medical evidence of record is insufficient, or in the opinion of the BVA, of doubtful weight or credibility, the BVA is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recog nized medical treatises in its decisions that clearly support its ultimate conclusions. See 38 U.S.C. § 4009 (1988); Murphy v. Derwinski, [1 Vet.App. 78, 81] (1990). This procedure ensures that all medical evidence contrary to the veteran’s claim will be made known to him and be part of the record before this Court. The BYA is required by 38 U.S.C. § 4004(d)(1) (1988) to include in its decisions “a written statement of [its] findings and conclusions, and the reasons or bases for those findings and conclusions....” See Gilbert v. Derwinski, 1 Vet.App. 49, 55-57 (1990); Sammarco v. Derwinski, 1 Vet.App." }, { "docid": "18610352", "title": "", "text": "be persuasive or unpersuasive. These decisions must contain clear analysis and succinct but complete explanations.” Gilbert, 1 Vet.App. at 57. The BVA failed to provide a clear statement of its reasons or bases as required by 38 U.S.C. § 7104(d)(1) for its conclusion that “[t]he criteria for a permanent and total rating for pension purposes are not met.” Roberts, BVA 90-08498, at 5. The case must be remanded for a complete analysis of the credibility or probative value of evidence submitted by or on behalf of the veteran in support of his claim, .to address appellant’s unemployability in light of the physical pain he suffers, to explain the reasons or bases for the Board’s assertion that appellant can carry on the activities of daily living, and that his age, experience, and education do not prohibit him from carrying on employment, and for the BVA to articulate with reasonable clarity its “reasons or bases” for the rejection of such evidence in its decision, if it continues to reject that evidence. 38 U.S.C. § 7104(d)(1); Moyer v. Derwinski, 2 Vet. App. 289, 294 (1992); Smith v. Derwinski, 1 Vet.App. 235, 237-38 (1991); Ohland v. Derwinski, 1 Vet.App. 147, 150 (1991); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). Because the Court finds that the BVA’s discussion and evaluation are inadequate, we are compelled to overturn the Board’s decision and remand this case for compliance with the statutory requirement and the standards established by this Court. See Talley v. Derwinski, 2 Vet. App. 282 (1992). C. In its statement of the “reasons or bases,” the Board must also include in its decision “the precise bases for that decision, and ... the Board’s response to the various arguments advanced by the claimant.” Gilbert, 1 Vet.App. at 56. Appellant contends that since the Social Security Administration (SSA) has deemed him unemployable and eligible for benefits, the Department of Veterans Affairs should also grant him eligibility for total disability benefits. The Board acknowledged that the SSA’s decision found the veteran totally disabled, yet failed to give this decision and the findings of the physicians any consideration" }, { "docid": "22113362", "title": "", "text": "rated at the same level as the functional loss where flexion is impeded. Cf. Lichtenfels v. Derwinski, 1 Vet.App. 484, 487-88 (1991). Elsewhere, the regulations specifically direct that painful motion must be considered as a part of disability when rating the joints for purposes of disability benefits. 38 C.F.R. § 4.45 (1991) states: As regards the joints the factors of disability reside in reductions of their normal excursion of movements in different [planes]. Inquiry will be directed to these considerations: _ Less movement than normal.... More movement than normal_ Weakened move-ment_ Excess fatigability_ Pain on movement, swelling, deformity or atrophy of disuse. (Emphasis added.) Sections 4.40 and 4.45 together thus make clear that pain must be considered capable of producing compensa-ble disability of the joints. Where, as here, the claimant asserts to the BVA facts which would support a rating of compensable functional disability due to pain, section 4.40 must be applied to determine if a compensable rating is warranted. See Hatlestad v. Derwinski, 1 Vet.App. 164, 167-68 (1991); Lichtenfels at 487-88. A compensable rating is warranted if the claim for functional loss due to pain is “supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.” 38 C.F.R. § 4.40 (1991); Hatlestad, at 167-68. “The BVA is not free to ignore regulations which the VA has adopted.... Once a veteran raises a well grounded claim to which a regulation could reasonably apply, the BVA must apply the regulation or give the reasons [or] bases explaining why it is not applicable.” Payne v. Derwinski, 1 Vet.App. 85, 87 (1990); see also Peyton v. Derwinski, 1 Vet.App. 282, 285-87 (1991); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). This requirement derives directly from the BVA’s jurisdictional statute, which provides in relevant part: (a) ... Decisions of the [BVA] shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation. (c) The [BVA] shall be bound in its decisions by the regulations of the Veterans’ Administration.... (d) Each decision of" }, { "docid": "22113363", "title": "", "text": "is warranted if the claim for functional loss due to pain is “supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.” 38 C.F.R. § 4.40 (1991); Hatlestad, at 167-68. “The BVA is not free to ignore regulations which the VA has adopted.... Once a veteran raises a well grounded claim to which a regulation could reasonably apply, the BVA must apply the regulation or give the reasons [or] bases explaining why it is not applicable.” Payne v. Derwinski, 1 Vet.App. 85, 87 (1990); see also Peyton v. Derwinski, 1 Vet.App. 282, 285-87 (1991); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). This requirement derives directly from the BVA’s jurisdictional statute, which provides in relevant part: (a) ... Decisions of the [BVA] shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation. (c) The [BVA] shall be bound in its decisions by the regulations of the Veterans’ Administration.... (d) Each decision of the Board shall include— (1) a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record.... 38 U.S.C. § 7104(a), (c), (d)(1) (formerly § 4004). Where a YA regulation is made potentially applicable through the assertions and issues raised in the record, the Board’s refusal to acknowledge and consider that regulation is “arbitrary, capricious, an abuse of discretion,” and “not in accordance with the law,” and must be set aside as such. 38 U.S.C. § 7261(a)(3) (formerly § 4061); see Payne, at 87. Although neither party here mentioned section 4.40, the Board was required to consider its applicability and explain the reasons or bases for its conclusion. Based upon the veteran’s repeated assertions, noted above, of pain in his right arm which prevented him from doing his work as a carpenter, we conclude that he submitted a well-grounded claim for a rating for functional loss due to pain. See Moore v. Derwinski, 1 Vet.App. 401," }, { "docid": "18508356", "title": "", "text": "of Appellee at 6; R. at 100, 140, 141, 159, 210. It is the duty of the BVA to assess the credibility of the veteran’s sworn testimony and other statements under Wilson v. Derwinski, 2 Vet.App. 16, 19-20 (1991) and to address appellant’s pain to determine functional loss under 38 C.F.R. § 4.40 (1991). Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); Ferraro v. Derwinski, 1 Vet.App. 326, 330 (1991); Hatlestad v. Derwinski, 1 Vet.App. 164, 167 (1991). The Court agrees with the Secretary that the case must be remanded for a complete analysis of the credibility or probative value of evidence submitted by or on behalf of the veteran in support of his claim, to address appellant’s unemployability in light of the pain he suffers and the effect of narcotic painkillers, and for the BVA to articulate with reasonable clarity its “reasons or bases” for the rejection of such evidence in its decision, if it continues to reject that evidence. 38 U.S.C. § 7104(d)(1) (formerly § 4004); Ohland v. Derwinski, 1 Vet.App. 147, 150 (1991); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). Moyer has never worked for more than six months, and the employment or volunteer work he performed was only on a part-time basis. Moyer has never performed “substantially gainful employment”. The established VA policy is that “all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.” 38 C.F.R. § 4.16(b) (1991). Because Moyer has failed to meet a 100% disability under the schedu-lar standards, the Director of Compensation and Pension Service should have submitted Moyer’s claim for extra-schedular consideration, i.e., applied § 3.321(b)(1) as explained above. Id. The BVA decision fails to explain why this special consideration was not given to Moyer. R. at 8. The Secretary agrees that there is also no explanation as to why the BVA found no basis for allowance of the doctrine of rea sonable doubt as articulated in 38 U.S.C. § 5107(b) (formerly § 3007) and 38 C.F.R. § 3.102 (1991). R. at 7. The case is" }, { "docid": "23447326", "title": "", "text": "in judicial review, the BVA is required by 38 U.S.C. § 4004(d)(1) (1988) to include in its decisions a written statement of the Board’s findings and conclusions and the “reasons or bases” for those findings and conclusions. Gilbert, 1 Vet.App. at 57; Sammarco v. Derwinski, 1 Vet.App. 111, 114 (1991). “[T]he Board must identify those findings it deems crucial to its decision and account for the evidence which it finds to be persuasive or unpersuasive.” Ibid. The BVA decision here includes neither an analysis of the credibility or probative value of the evidence submitted by or on behalf of the veteran in support of his claim nor any explanation of the Board’s conclusion that he is not unemployable according to VA regulations. First, the Board failed to express the “reasons or bases” for its assessment of the lay evidence from the appellant and his wife. In Gilbert, we remanded the case in part because the BVA decision contained “neither an analysis of the credibility or probative value of the evidence submitted by or on behalf of the veteran in support of his claim nor a statement of the reasons or bases for the implicit rejection of this evidence by the Board.” Gilbert, 1 Vet.App. at 59. That same deficiency is present here. Second, the Rating Schedule regarding PTSD provides as follows as to the degree of incapacity or impairment: “total ...”— 100-percent; “severe” — 70-percent; “considerable” — 50-percent; “definite” — 30-percent; and “mild” — 10-percent. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1990). ‘Moderate’, the descriptive word used by the VA examining physician in his May 1988 evaluation, is not mentioned. The Board’s decision was deficient in failing to explain the criteria it used in making its determination about the category into which the examining physician’s classification fit. Third, the schedular ratings for PTSD do not have a classification for PTSD in association with alcoholism, the rating given the appellant here. See 38 C.F.R. § 4.132, Diagnostic Code 9411 (1990). In contrast, the regulations do include “Dementia associated with alcoholism” as Psychotic Disorder 9303. 38 C.F.R. § 4.132 (1990). This" }, { "docid": "23696346", "title": "", "text": "of his claim, the veteran submitted letters from his private physician and his two sisters. His physician described “persistent problems with pain in the right hip and knee ... [that] required local physical therapy, anti-inflammatories and joint injections ... [and bother the appellant] on a fairly regular basis.” R. at 14. His sisters stated that when the veteran “went to the army ... he had no leg problems and when he came out ... he had hurt his leg and thigh, ... went to doctors the last 45 years ... [, and] takes pain pills”. R. at 16. The appellant’s service records are missing and assumed destroyed in the 1973 St. Louis Federal Records Center fire. The BVA decision dismissed the appellant’s evidence with the conclusory statement that it was “insufficient” to demonstrate service connection in the face of “a search of the January and February 1945 morning reports for that military base [that] was apparently negative for any reference to the claimant or the injury he asserts having sustained while stationed there.” Neil O’Hare, at 3. In response to appellant’s informal brief, filed on October 18, 1990, the Secretary of Veterans Affairs, on November 19, 1990, filed a motion for summary affirmance. On consideration of these pleadings, the Secretary’s motion is denied. This case on appeal does not fit the criteria for summary affirmance announced by the Court in Frankel v. Derwinski, 1 Vet.App. 23 (1990). The case is not one of “relative simplicity” and involves an issue of adherence by the Department of Veterans Affairs (VA) to 38 U.S.C. § 4004(d)(1) and Gilbert v. Derwinski, 1 Vet.App. 49 (1990). See Frankel, at 25-26. The BVA decision here does not meet the prescription of 38 U.S.C. § 4004(d)(1) (1988) that the BVA’s findings and conclusions be accompanied by ‘reasons or bases’ adequate to explain both to the veteran and this Court its factual findings and its conclusions. See Gilbert, at 56-57; Hatlestad v. Derwinski, 1 Vet.App. 164, 170 (1991). This includes “identifying] those findings it deems crucial to its decision and accounting] for the evi dence which it finds" }, { "docid": "11940586", "title": "", "text": "hip conditions since those conditions became apparent subsequent to that examination. Nevertheless, the Board relied on a comment in a 1982 VA examination to discount the complaints of pain, popping, and stiffness in a 1992 VA examination. See Harder v. Brown, 5 Vet.App. 183, 188-89 (1993) (Court reversed BVA decision where BVA’s findings were predicated on a flawed analysis of evidence). The Board also stated that “[gjiven the limited radiological and clinical findings, we do not find the veteran’s complaints of hip pain to be persuasive.” Hicks, BVA 94-00760, at 7. This finding, however, was made possible by an inadequate examination. Although the Board initially remanded the claim for the conduct of an adequate examination in February 1992 (R. at 372-73), the August 1992 VA examination did not provide the requisite specificity regarding the appellant’s functional loss due to pain. As the Secretary points out in his brief, it is unclear whether the reference to popping in the hips and pain near full range of motion in the August 1992 examination report (see Suppl.R. at 21) was a finding upon examination or a description of the condition that the examiner was being asked to evaluate. Secretary’s Brief (Br.) at 20. In Voyles v. Brown, 5 Vet.App. 451, 453 (1993), the Court remanded where a VA examination report noted the veteran’s complaints of pain, but did not discuss the impact of any pain on the functional loss in the veteran’s low back and hip conditions. See 38 C.F.R. § 4.2 (1994) (if report does not contain sufficient detail, rating board must return report as inadequate for evaluation purposes); see also Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (inadequate examination frustrated judicial review); Green v. Derwinski, 1 Vet.App. 121, 124 (1991) (where claim is well grounded, Board must seek conduct of thorough, contemporaneous examination); see also 38 U.S.C. § 5107(a). The Secretary concedes, and the Court agrees, that the August 1992 VA examination was inadequate for evaluation purposes. Secretary’s Br. at 20. Therefore, the Court will remand the claim for the Board to order the conduct of an additional medical examination" }, { "docid": "10150392", "title": "", "text": "§ 7104(d)(1). See Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). If on remand the Board determines that there existed an increase in appellant’s right eye disability during service, the BVA must apply the presumption of aggravation, found in 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306, and explain whether or not that presumption has been rebutted by clear and unmistakable evidence. Hensley, 5 Vet.App. at 163. We note that in its May 1991 decision, the Board discredited the results of appellant’s discharge eye examination because it was based on the Snellen Test, which the Board characterized as a “subjective” testing method for which “absolute accuracy” cannot be guaranteed. Browder, BVA 91-16601, at 7. Whether or not any subjective factors inherent in the Snellen Test create presumptions of error or inaccuracy, it is the method used here and prescribed by VA regulation for determin ing visual acuity (38 C.F.R. § 4.75 (1992)), and, therefore, the BVA is required to accept the test results when making its determinations, unless there is a persuasive factual basis in an individual case, which is not present here, for rejecting such test results. The Court holds that the Hensley standard is not satisfied by the BVA decision on appeal because the BVA’s categorical rejection of the Snellen test is not an acceptable ground for rejecting the test results as an indicator of an increase in appellant’s eye disability. B. In Browder I the Court found the BVA’s December 1989 decision deficient because the Board failed to provide independent medical authority for its conclusion that “astigmatism of his right eye, shown on discharge examination, is a developmental eye defect.” George A. Browder, 89-20390 BVA, at 4 (Dec. 28, 1989). The .Court rejected this conclusory statement and stated that the BVA should have attempted to establish when appellant developed an astigmatism and whether it caused his visual acuity to decline. Browder, 1 Vet.App. at 207. According to 38 C.F.R. § 3.303(c), “congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of" }, { "docid": "10148449", "title": "", "text": "in the record to the veteran’s complaints of pain, and despite his failure to raise the issue of the applicability of regulations related to pain, the BVA was required to consider the applicability of 38 C.F.R. § 4.40 (1992) and § 4.45(f) (1992). See Quarles v. Derwinski, 3 Vet.App. 129, 139 (1992); Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); Hatlestad v. Derwinski, 1 Vet.App. 164, 167 (1991); see also Douglas v. Derwinski, 2 Vet.App. 435, 438-40 (1992) (en banc). Section 4.40 states, in pertinent part, that it is “essential that the examination on which ratings are based adequately portray ... the functional loss” affecting the parts of the body subject to the disability. 38 C.F.R. § 4.40. The regulation further provides that functional loss may be due to “pain, supported by adequate pathology and evidenced by the visible behavior of the claimant” and that a part of the musculo-skeletal system “which becomes painful on use must be regarded as seriously disabled.” Id. In addition, 38 C.F.R. § 4.45(f) states that in order to determine the factors causing disability of the joints, which includes the lumbar spine, the inquiry must be directed toward, inter alia, “[p]ain on movement.” Thus, in this case, it was necessary for the BVA to address both the existence and extent of appellant’s pain, as well as any limitation of motion due to his service-connected disabilities. Under the regulations, the “functional loss due to pain is to be rated at the same level as the functional loss where flexion is impeded.” Schafrath, 1 Vet.App. at 592. The Board’s decision fails to consider or discuss how regulations 4.40 and 4.45(f) apply to the facts presented in this case. Although appellant’s complaints of pain appear throughout the record, including his sworn testimony in 1990 that he experienced constant back pain, the Board failed to mention the extent of any functional loss due to pain with regard to his service-connected disabilities. While the reports of the March 1990 VA examination and the November 1990 examination by Dr. LaCour noted the veteran’s complaints of pain, they did not discuss the" }, { "docid": "4744520", "title": "", "text": "a secondary condition, the secondary condition shall be considered a part of the original condition. (Emphasis added.) We note that when Dr. DeFonte examined and diagnosed appellant, she stated that portions of his deep venous system may be chronically thrombosed because of his past history of knee trauma. R. at 16. This statement presents a basis for a well-grounded claim for secondary service connection for venous thrombosis under § 3.310(a). Nevertheless, the BVA simply concluded, without explanation, that venous thrombosis is a condition for which service connection is not in effect. In so doing, it ignored the question of whether or not the appellant is entitled to service connection for this condition. The Court has continually held that an issue reasonably raised from a liberal reading of an appellant’s substantive appeal must be addressed. See, e.g., Myers v. Derwinski, 1 Vet.App. 127, 129-30 (1991); Payne v. Derwinski, 1 Vet.App. 85, 87 (1990). In resolving the issue, the BVA is to apply all relevant regulations. See, e.g., Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991); Akles v. Derwinski, 1 Vet.App. 118, 120-21 (1991); Fugere v. Derwinski, 1 Vet.App. 103, 108-09 (1990) (quotations omitted); Payne, at 87; Bentley v. Derwinski, 1 Vet.App. 28, 31 (1990). If, in considering this question upon remand, the BVA determines that venous thrombosis is not service connected, it must give adequate reasons or bases to clearly and completely explain and support its position. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990) (quotations omitted); Sammarco v. Derwinski, 1 Vet.App. 111, 113-14 (1991). B. 38 C.F.R. § 4.59 (1990), which addresses arthritic pain, states in relevant part: With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing etc. on pressure or manipulation, should be carefully noted and definitely related to affected joints.... It is the intention to recognize actually painful, ... joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.... Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and," }, { "docid": "23387537", "title": "", "text": "these deficiencies through his sworn testimony and that of his wife. He stated that he did not disclose to his examiners that he was having back problems because he wanted to retain his right to receive a naval pension. From 1972 through 1979, appellant stated that he relied on home remedies such as heating pads and pain relievers and that it was not until 1979 that his back pain was so excruciating that he had to see a doctor. R. at 200-2. Credibility is determined by the fact finder. As this Court determined in Jones, at 217, the Court cannot determine the credibility of a veteran’s sworn testimony. Determination of credibility is a func tion for the BVA. The Court holds that such a determination is needed here. See also Hatlestad v. Derwinski, 1 Vet.App. 164, 170, 171 (1991) (remanded in part for the Board to provide reasons or bases for its assessment of appellant’s personal, sworn testimony as evidence); Webster v. Derwinski, 1 Vet.App. 155, 159 (1991) (remanded in part for the Board to provide reasons or bases in assessing the sworn testimony of appellant and his physician); Ohland v. Derwinski, 1 Vet.App. 147, 148-149 (1991) (remanded in part for the Board to provide reasons or bases for its assessment of the lay evidence provided by appellant and his wife). As we recently expressed in Hatlestad, at 169: [i]n order to enable a claimant to understand a decision and the reasons behind it, as well as to assist in judicial review, the BVA is required by 38 U.S.C. § 4004(d)(1) (1988) to include in its decisions “a written statement of [its] findings and conclusions, and the reasons or bases for those findings and conclu-sions_” See Gilbert v. Derwinski, [1 Vet.App. 49, 56-57] (1990); Sammarco v. Derwinski, [1 Vet.App. 111, 112-114] (1991). As to the statement of findings, “the Board must identify those findings it deems crucial to its decision and account for the evidence which it finds to be persuasive or unpersuasive.” Gilbert, at 57; Sammarco, at 114. Here, the Board’s decision failed to contain a statement of “reasons" }, { "docid": "18610351", "title": "", "text": "the claim disability will be a fully informed one. 38 U.S.C. § 5107(a) (formerly § 3007(a)); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). In view of these defects in the Board decision and the ambiguities in the record, the Court remands this case for a new physical examination and a new rating decision to accurately identify the percentage of impairment attributable to each specific disability under all applicable statutes and regulations. B. Furthermore, the Board reached its “Conclusion of Law” without including the requisite “written statement of [its] findings and conclusions, and the reasons or bases for those findings and conclusions” as mandated by 38 U.S.C. § 7104(d)(1) (formerly § 4004(d)(1)) to enable the veteran to understand the decision and for this Court to fulfill its function of judicial review. See Sammarco v. Derwinski, 1 Vet.App. 111, 112-13 (1991); Gilbert v. Derwinski, 1 Vet.App. 49, 56 (1990). As this Court stated in Gilbert, “the Board must identify those findings it deems crucial to its decision and account for the evidence which it finds to be persuasive or unpersuasive. These decisions must contain clear analysis and succinct but complete explanations.” Gilbert, 1 Vet.App. at 57. The BVA failed to provide a clear statement of its reasons or bases as required by 38 U.S.C. § 7104(d)(1) for its conclusion that “[t]he criteria for a permanent and total rating for pension purposes are not met.” Roberts, BVA 90-08498, at 5. The case must be remanded for a complete analysis of the credibility or probative value of evidence submitted by or on behalf of the veteran in support of his claim, .to address appellant’s unemployability in light of the physical pain he suffers, to explain the reasons or bases for the Board’s assertion that appellant can carry on the activities of daily living, and that his age, experience, and education do not prohibit him from carrying on employment, and for the BVA to articulate with reasonable clarity its “reasons or bases” for the rejection of such evidence in its decision, if it continues to reject that evidence. 38 U.S.C. § 7104(d)(1); Moyer v." }, { "docid": "1103739", "title": "", "text": "in 1965; that the earliest findings possibly indicating hypertension had been elevated diastolic blood-pressure readings on VA examinations in 1972 and 1973; and that hypertension had first been diagnosed by a VA physician in 1984. Zevalkink, BVA 91-19719, at 9-10. The Board thus concluded that there was no evidence that the veteran had had hypertension during service or within an applicable presumption period. The Court reviews BVA fact findings under a “clearly erroneous” standard. 38 U.S.C. § 7261(a)(4); see Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). Pursuant to that standard, “[I]f there is a ‘plausible’ basis in the record for the factual determinations of the BVA, ... we cannot overturn them.” Gilbert, supra. In the instant case, the Board’s findings that there is no evidence linking the veteran’s hypertension to service is supported by a plausible basis in the record and is thus not clearly erroneous. The Court will, therefore, affirm the BVA decision denying the accrued-benefits claim as to hypertension. D. Myalgia and Arthritis Claims Although the Board’s decision listed the myalgia and arthritis claims as separate claims, the Board discussed those issues in combination and treated those claims as essentially intertwined. Zevalkink, BVA 91-19719, at 10-11. (“Myalgia” is “muscle pain”; arthritis is “articular rheumatism” or “inflammation of a joint”; “rheumatoid arthritis” is “a thickening of articular soft tissue”; “rheumatism” is an “indefinite term applied to various conditions with pain or other symptoms which are of articular origin or related to other elements of the musculoskeletal system”. Stedman’s Medi-oal DICTIONARY 134-35, 1009, 1358 (25th ed. 1990).) The record on appeal indicates that VA has treated those claims as intertwined throughout the course of its adjudications. See R. at 134, 187. Accordingly, the Court will treat these claims as intertwined for purposes of review in the instant appeal. See Harris v. Derwinski, 1 Vet.App. 180,183 (1991). In light of the apparent SMR from April 1944 stating “myalgia, marked, ... both thighs and legs” (R. at 136, 209; see also R. at 134), the Board apparently erred in stating that the SMRs “are negative for” “rheumatoid arthritis and myalgia”, Zevalkink," }, { "docid": "8329641", "title": "", "text": "and the previous findings of the Board, the Board’s conclusion in its 1990 decision, in the face of the almost identical evidence to that in the record as to the wrists, that the right shoulder arthritis was due to the aging process rather than trauma was the result of an arbitrary and capricious decision-making process under 38 U.S.C. § 7261(a)(3)(A). We note that at oral argument VA counsel argued that the section 1112(b)(12) presumption was rebutted as to the right shoulder under section 1113 by a lack of post-service complaints as to the right shoulder, whereas, the presumption had not been rebutted as to the wrists because of the 1947 clinical records indicating “arthritic type complaints”. Without deciding whether rebuttal under section 1113 could be based on such a lack of post-service complaints, we point out that the record indicates that the veteran did indeed complain of “some pain in the right shoulder” as early as 1949 at a VA examination. R. at 34. Thus, the presumption as to the right shoulder could not have been rebutted by a lack of evidence of post-service complaints. D. As to the veteran’s claim to entitlement to service connection for arthritis of the knees, hips, spine, left ankle, and left shoulder, we remand the claim to the BVA for readjudication and a statement of “reasons or bases” for the Board’s findings and conclusions under 38 U.S.C. § 7104(d)(1). In denying the claim as to those joints (and the right shoulder), the Board made the following statement: “Medical opinion to the contrary notwithstanding, we must conclude that, as the Board did previously, the veteran does not have traumatic arthritis of the knees, hips, spine, left ankle and shoulders.” Bailey, BVA 90-02581, at 6. In Gilbert v. Derwinski, 1 Vet.App. 49 (1990), we stated: [T]he Board must identify those findings it deems crucial to its decision and account for the evidence which it finds to be persuasive or unpersuasive. These decisions must contain clear analysis and succinct but complete explanations. A bare conclusory statement, without both supporting analysis and explanation, is neither helpful to the" } ]

[ { "docid": "355763", "title": "", "text": "the psychiatric examination because he confronts \"a variety of solicitous, confidence-inspiring mental health professionals” who \"presentí] a therapeutic facade beneath which exists a real adversity of interests,” id. at 1158. Whichever of these incompatible perceptions is correct, one must admire the dissent's courage in assessing the needs and prescribing the details of psychiatric practice, despite its awareness that even our less refined calculations in this field have left us (and, judging by the repeated legislative reversals of our determinations, the people) \"sorely disappointed.” Id. at 1175. . The guarantee provides: \"In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” . Neither at trial nor on appeal did appellant raise this Sixth Amendment claim. Appellant concedes that it was asserted for the first time (by new counsel) in his Petition for Rehearing and Suggestion for Rehearing En Banc. Appellees argue that we are therefore precluded from considering it. It is true as a general rule that appellate courts will not consider questions raised for the first time on appeal, see, e.g., Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). However, we are \"bound to consider any change, either in fact or in law, which has supervened since the judgment [from which appeal is taken] was entered,\" Patterson v. Alabama, 294 U.S. 600, 607, 55 S.Ct. 575, 578, 79 L.Ed. 1082 (1935); see, e.g., Pendergrast v. United States, 416 F.2d 776, 780-81 (D.C.Cir.1969). We think that the Supreme Court’s decision in Estelle v. Smith, supra, hand- ' ed down during our consideration of Byers’ Petition for Rehearing, which elevated Byers’ Sixth Amendment claim from completely untenable to plausible, see pages 1119-1120, infra, invokes this limited exception. . Then Judge Burger objected to this discussion, which he considered \"plainly dicta and in no sense authoritative.” Thornton, supra, 407 F.2d at 705. His dissent from this portion of the opinion appended his dissent from an earlier order filed in the same case, in which he rejected the contention that the staff conference was a critical prosecutive" } ]

[ { "docid": "21763498", "title": "", "text": "to address the issues in the first instance before they have been properly raised and tried in the District Court. Singleton, 428 U.S. at 121, 96 S.Ct. 2868. Given the novelty and complexity of Appellant Mandan’s claims, the materials that he asks us to review, and the policy arguments that he raises, it would be entirely inappropriate for this court to address the merits of his claims without the benefit of a full record, including a decision from the District Court in the first instance. As then-judge Scalia explained, [t]he premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.... Failure to enforce this requirement will ultimately deprive us in substantial measure of that assistance of counsel which the system assumes—a deficiency that we can perhaps supply by other means, but not without altering the character of our institution. Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983); see also Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037 (1941) (“[It] is essential ... that parties may have the opportunity to offer all the evidence they believe relevant to the issues which the trial tribunal is alone competent to decide.... ”). Departing from our established “principle of party presentation” would deprive the parties of a full opportunity to present their arguments and would place this court in the unsuitable position of deciding novel legal issues in the first instance. This is not our role. We understand that, in “exceptional circumstances,” an appellate court may exercise discretion to address an i,ssue that is subject to forfeiture. Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 n.5 (D.C. Cir. 1992). The Supreme Court said as much in Singleton, 428 U.S. at 121, 96 S.Ct. 2868. But the Court made it clear that this is the exception, not the rule, and it should be limited to situations “as where the proper resolution is beyond any doubt,” or where “injustice" }, { "docid": "20411382", "title": "", "text": "C. Cause of Action Having concluded that jurisdiction in this case properly lies in the District Court, we arrive at the clear conflict between the District Court’s judgment in favor of appellees and this court’s recent holding in Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024. In Cicippio, we held that neither § 1605(a)(7) nor the Flatow Amendment, nor the two considered together, supplies a cause of action against foreign states. See 353 F.3d at 1033. In the instant case, the District Court predicated its finding of liability on precisely those provisions, and appellees point to no alternative cause of action. We therefore conclude that appellees have failed to state a cause of action. Because of the default of the Iraqi defendants, no party questioned the existence of appellees’ cause of action during the proceedings in the District Court. Nor did the United States raise this issue in its motion to intervene. Nevertheless, no party contests this court’s discretion to reach this issue on our own motion in light of the intervening change in law. Appellees rightly contend that non-jurisdictional defenses such as the failure to state a cause of action are waivable and that courts generally do not permit parties to raise such issues for the first time on appeal. The right of a party to advance this objection is not coextensive with the discretion of the court to consider the issue, however. As we have held, “[c]ourts of appeals are not rigidly limited to issues raised in the tribunal of first instance; they have a fair measure of discretion to determine what questions to consider and resolve for the first time on appeal.” Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 n. 5 (D.C.Cir.1992) (addressing the existence of a cause of action for the first time on appeal in light of a relevant intervening Supreme Court decision). Thus, while we will ordinarily refrain from reaching non-jurisdictional questions that have not been raised by the parties or passed on by the District Court, we may do so on our own motion in “exceptional" }, { "docid": "18644335", "title": "", "text": "A. The District of Columbia seeks to take advantage of the Department’s recent regulatory change by claiming, for the first time on appeal, that the Department’s anti-docking regulation (as it existed prior to the August 1992 revision) is ultra vires as applied to public employers. Paralleling the reasoning the Department used in revising the regulation, the District claims that if the anti-docking requirement were applied to public employers — making the salary exception effectively unavailable to them — congressional intent in extending the FLSA to public employers in 1974 would be frustrated: The District cannot point successfully, however, to any “exceptional circumstance[ ]” to justify a departure from our rule that we will not hear an argument made for the first time on appeal. See Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 n. 5 (D.C.Cir.1992); see also Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976) (stating that an appellate court generally will not consider questions not raised below). To be sure, we have indicated that we might entertain a new argument on appeal if it were justified by, inter alia, an intervening change in the law, see, e.g., Roosevelt, 958 F.2d at 419 n. 5; United States v. Byers, 740 F.2d 1104, 1115 n. 11 (D.C.Cir.1984) (en banc) — such as a Supreme Court decision that could be thought to alter substantially the legal framework that governed the appeal. The District argues that the new Labor Department regulation is just such a change. But by the term “intervening change in the law,” we were not referring to a prospective change that could not affect rights already accrued, and the 1992 DOL regulatory revision implemented only a prospective change. Indeed, the Department withdrew a draft of the regulation that would have altered the application of section 514.118 retroactively, because it concluded that such a change would have constituted invalid retroactive rulemaking under Bowen v. Georgetown University Hospital, 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). See 57 Fed.Reg. 37,678 (1992) (withdrawing a notice of proposed rulemaking" }, { "docid": "17052529", "title": "", "text": "the Corrections Corporation. Under Monell, municipalities are liable for their agents’ constitutional torts only if the agents acted pursuant to municipal policy or custom. 436 U.S. at 694, 98 S.Ct. at 2037-38. Respondeat superior does not apply. Id. In order to state a claim against a municipality, the plaintiff therefore must allege not only a violation of his rights under the Constitution or federal law, but also that the municipality’s custom or policy caused the violation. See Collins v. City of Harker Heights, 503 U.S. 115, 123-24, 112 S.Ct. 1061, 1067-68, 117 L.Ed.2d 261 (1992); Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C.Cir.2003). The District argues that the district court properly dismissed the complaint because Warren failed to allege any constitutional violations. The District never mentioned this argument in the district court but thinks Dandridge v. Williams, 397 U.S. 471, 476 n.6, 90 S.Ct. 1153, 1157 n.6, 25 L.Ed.2d 491 (1970), allows a prevailing party to defend the judgment on any ground. The law is otherwise. The Supreme Court has entrusted to the discretion of the courts of appeals the “matter of what questions may be taken up and resolved for the first time on appeal.” Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877-78, 49 L.Ed.2d 826 (1976). In this court, the general rule is that a prevailing party may defend the judgment on any ground decided or raised below. See Rogers v. District of Columbia, 194 F.3d 174 (D.C.Cir.1999); District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084-85 (D.C.Cir.1984). That too is the general rule in the Supreme Court. See, e.g., Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 38-39, 109 S.Ct. 2782, 2788-89, 106 L.Ed.2d 26 (1989). While we have discretion to consider issues not presented to the district court, Roosevelt v. E.I. DuPont de Nemours & Co., 958 F.2d 416, 419 n. 5 (D.C.Cir.1992), the District has offered us no good reason for departing from our general rule. If on remand the District continues to believe that Warren has not alleged constitutional violations, it may file an appropriate motion. Nothing we" }, { "docid": "14674820", "title": "", "text": "Court. As a general rule, an argument that is not raised below cannot be raised for the first time by an appellant in a court of appeals. Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826; National Metalcrafters v. McNeil, 784 F.2d 817, 825 (7th Cir.1986); Mattingly v. Heckler, 784 F.2d 258, 261 n. 2 (7th Cir. 1986); Erff v. Markhon Industries, Inc., 781 F.2d 613, 618 (7th Cir.1986). However, like many general rules, this rule has its exceptions. Singleton, 428 U.S. at 120-121, 96 S.Ct. at 2877; National Metal-crafters, 784 F.2d at 825. We do retain discretion to entertain in certain situations an issue on appeal that was not raised below. Singleton, 428 U.S. at 121, 96 S.Ct. at 2877; Sgro v. United States, 609 F.2d 1259, 1264 n. 8 (7th Cir.1979). In particular, where the issue does not require a new factual record, Commissioner v. Gordon, 391 U.S. 83, 95 n. 8, 88 S.Ct. 1517, 1524 n. 8, 20 L.Ed.2d 448; National Metalcrafters, 784 F.2d at 826; Sgro, 609 F.2d at 1264 n. 8, and where there has been a change in the views of existing law that occurred after the decision below but prior to the appeal, Hormel v. Helvering, 312 U.S. 552, 558-559, 61 S.Ct. 719, 722, 85 L.Ed. 1037, a court of appeals has the discretion to hear the issue on appeal. In view of the nature of the issue raised by Gehl and the timing of the Second Circuit’s decision in LeCroy (the LeCroy decision was announced December 20, 1984, whereas the decision below was filed December 27, 1984, and Gehl’s answering brief was filed March 8, 1984), we will reach the merits of the re-troactivity issue. Section 7805(b) gives the Commissioner the power to “prescribe the extent, if any, to which any ruling or regulation ... shall be applied without retroactive effect,” and thus establishes a presumption that regulations are to be applied retroactively. CWT Farms, 755 F.2d at 802; LeCroy, 751 F.2d at 126; Redhouse v. Commissioner, 728 F.2d 1249, 1251 (9th Cir.1984), certiorari denied, — U.S." }, { "docid": "7866769", "title": "", "text": "offense of murder, Livingston challenged the trial court's failure to instruct additionally on felony murder. We rejected Livingston's challenge because the jury had a \"third option”: to convict on the lesser included offense of murder. We did not extend Beck, which was concerned with the all-or-nothing scheme, to cases in which the defendant did have the benefit of a third option. See id. at 313 (citing Allridge v. Scott, 41 F.3d 213, 220 (5th Cir.1994) (stating Beck inapplicable when jury had option to choose murder over capital murder)). Livingston is inapposite because the jury that convicted Creel did not have a third option to consider. . Creel contends we should not review this issue because the State did not argue it to the district court. We resolve the issue because uncertainty exists with respect to a pure question of law. See Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976) (\"The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the court of appeals, to be exercised on the facts of individual cases.”); Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 n. 5 (D.C.Cir.1992) (citation omitted) (noting discretion will be exercised in circumstance of uncertain state of the law). This purely legal uncertainty distinguishes this case from those in which we apply plain error review to the issues presented first to the appellate court. See Rhelt R. Dennerline, \"Pushing Aside the General Rule in Order to Raise New Issues on Appeal,\" 64 Ind. L.J. 985, 999 (1989) (explaining how characterizing an issue as one of \"pure law,” which raises a new theory, differs from characterizing it as \"plain error,” which alleges trial error to which there was no objection, but could be clearly resolved); cf. United States v. Calverley, 37 F.3d 160, 163 (5th Cir. 1994) (en banc) (holding plain error review appropriate where the error was clear under current law at the time of trial). . We reject also Creel’s contention that we" }, { "docid": "1958899", "title": "", "text": "is 91 days before his district court complaint was filed. If Woodruff received notice of the FAD on or before June 15, his complaint was untimely. But a plaintiffs failure to meet the § 2000e-16(e) deadline is an affirmative defense, Harris, 126 F.3d at 341, and the burden of proof is on the party claiming the deadline was missed. The Secretary has failed to meet the burden here. The DOT sent Woodruff notice of the FAD on June 12, but nothing in the record establishes when Woodruff received this notice. The DOT’s letter was marked “return receipt requested,” but no receipt was introduced into evidence. Woodruffs Issue Statement and exhibits are inconclusive. While we could speculate that Woodruffs statement that he received the notice “on or about June 15” makes it more likely than not that his civil complaint was untimely, such speculation does not take the place of hard proof, which the Secretary simply has not provided. Therefore, the DOT’s affirmative defense of untimely filing fails. Second, the Secretary contends that Amicus’s arguments regarding (1) adverse employment actions Woodruff claims to have incurred in September 1998 and (2) Woodruffs status as a “qualified individual with a disability” were not raised before the district court and were thus waived. “It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); see also Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1039 (D.C.Cir.2003). Absent “exceptional circumstances,” we do not ordinarily entertain issues first raised on appeal. Marymount Hosp. v. Shalala, 19 F.3d 658, 663 (D.C.Cir.1994); see also Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 n. 5 (D.C.Cir.1992) (listing examples of sufficient circumstances). However, this rule is prudential only, not jurisdictional. Yee v. City of Escondido, 503 U.S. 519, 533, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992). Also, “[o]nce a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to" }, { "docid": "13739843", "title": "", "text": "a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). The FLSA does not define “executive, administrative, or professional capacity”; instead, it expressly delegates that task to the Secretary of Labor who may “from time to time” alter the definitions. See 29 U.S.C. § 213(a)(1). From “time to time” has proved to be fairly infrequent. A few days after oral argument in this case, the Secretary issued a comprehensive set of new regulations, see 69 Fed.Reg. 22,260 (April 23, 2004), but it had been some time since the last changes. The FLSA’s duties test, which determines which jobs qualify for exempt status, had not been changed significantly since 1949. The Act’s definitions for what it means to work on a “salary basis” had not changed since 1954, and the Department of Labor (“DOL”) had last adjusted the minimum qualifying salary levels in 1975. Although the Secretary’s interpretive hiatus ended while this appeal was pending, the new definitions do not apply retroactively, saving us from having to send the case back to the district court for new findings. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) (“a statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms.”). We therefore stick with the old regulations, which (like their new counterparts) have “the force and effect of law,” as the statute expressly authorizes their promulgation. See Batterton v. Francis, 432 U.S. 416, 425 n. 9, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977). ComEd contends that each of the plaintiffs was exempt from receiving overtime because, properly characterized, they were all “administrative” employees. Under the old regulations, there was both a long test, see 29 C.F.R. § 541.2(a)-(e) (2001), and a short test, see 29 C.F.R. § 541.214 (2001), to determine whether an employee fell within the administrative exception. Under the new regulations, there is just one test, see 29 C.F.R. § 541.200 (2004), but, as we noted, we must apply" }, { "docid": "11513968", "title": "", "text": "this action insofar as the Mayor was sued in his official capacity. Tr. of Motions Hearing at 56-67. Therefore, the legislative immunity claim was expressly waived and cannot be resurrected on appeal. We likewise decline to address the merits of the Mayor’s claim, raised for the first time on appeal, that the District of Columbia is not a “State or political subdivision” to which § 2 of the Voting Rights Act applies. See 42 U.S.C. § 1973 (2003). “It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). The Mayor’s claim raises a pure question of law, which is within our discretionary authority to address. See Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 & n. 5 (D.C.Cir.1992). The issue presented, however, is of sufficient public importance and complexity to counsel strongly against deciding it in this posture. Appellants had no opportunity to address this defense prior to filing their reply brief. See Texas Rural Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d 685, 697 (D.C.Cir.1991) (stating that, in exercising its discretion as to whether to hear an issue not raised below, the court will look to whether the issue has been fully briefed by the parties). We need not resolve this question, moreover, because we decide the Voting Rights Act claims in the Mayor’s favor without turning to this untimely raised defense. B. Voting Rights Act Claims 1. Dismissal for Failure to State a Claim This court reviews de novo the District Court’s dismissal of a complaint for failure to state a claim, accepting plaintiffs’ factual allegations as true, and giving plaintiffs “the benefit of all inferences that can be derived from the facts alleged.” Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002) (internal quotation marks and citation omitted); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000) (internal quotation marks and citations omitted). We find that the District Court erred in dismissing appellants’ Voting" }, { "docid": "14117724", "title": "", "text": "argument at all times exclusively on the preamble interruption limitation. Rather than appealing that issue, Golden Bridge now raises a new and entirely different ground on appeal — that the Hakkinen reference does not teach “synchronization prior to transmission.” We cannot sanction the iterative process Golden Bridge would like to pursue. It would be unfair to allow Golden Bridge to bring some arguments distinguishing the Hakkinen reference during proceedings at the district court and then, only after those arguments have been completely rejected, bring entirely different arguments on appeal for the first time. “[I]t is the general rule ... that a federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). Our precedent generally counsels against entertaining arguments not presented to the district court. Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1426 (Fed.Cir.1997) (“In short, this court does not ‘review” that which was not presented to the district court.”). While appellate courts are given the discretion to decide when to deviate from this general rule of waiver, see Singleton, 428 U.S. at 121, 96 S.Ct. 2868, we have explained that “prudential considerations” articulated by the Supreme Court counsel against hearing new arguments for the first time on appeal absent limited circumstances, see Forshey v. Principi, 284 F.3d 1335, 1353-54 (Fed.Cir.2002) (quoting Hormel v. Helvering, 312 U.S. 552, 556-57, 61 S.Ct. 719, 85 L.Ed. 1037 (1941)). In Forshey, this court articulated an exemplary set of limited circumstances in which hearing arguments for the first time on appeal is appropriate: (1) “[w]hen new legislation is passed while an appeal is pending, courts have an obligation to apply the new law if Congress intended retroactive application even though the issue was not decided or raised below,” 284 F.3d at 1355; (2) “when there is a change in the jurisprudence of the reviewing court or the Supreme Court after consideration of the case by the lower court,” id. at 1356; (3) “appellate courts may apply the correct law even if the parties did not argue" }, { "docid": "21763499", "title": "", "text": "also Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037 (1941) (“[It] is essential ... that parties may have the opportunity to offer all the evidence they believe relevant to the issues which the trial tribunal is alone competent to decide.... ”). Departing from our established “principle of party presentation” would deprive the parties of a full opportunity to present their arguments and would place this court in the unsuitable position of deciding novel legal issues in the first instance. This is not our role. We understand that, in “exceptional circumstances,” an appellate court may exercise discretion to address an i,ssue that is subject to forfeiture. Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 n.5 (D.C. Cir. 1992). The Supreme Court said as much in Singleton, 428 U.S. at 121, 96 S.Ct. 2868. But the Court made it clear that this is the exception, not the rule, and it should be limited to situations “as where the proper resolution is beyond any doubt,” or where “injustice might otherwise result.” Id. (citation omitted). The record in this case does not come close to establishing exceptional circumstances that would militate in favor of this court considering, in the first instance, Appellant’s legal challenges to the cy-pres provision. The truth here is that the “exceptional circumstances” exception to forfeiture is of little moment in this case because, before the District Court, Appellant Mandan explicitly waived the claims that he now seeks to raise with this court. And contrary to what the dissent implies, there is no authority to support a suggestion that Appellant Mandan’s Appropriations Clause claims raise an Article III concern or call into question the jurisdiction of this court. The simple point here is that Appellant Mandan’s Appropriations Clause claims were waived before the District Court and that is the end of the matter. E. Appellant Tingle’s Arguments Appellant Tingle’s arguments overlap significantly with Appellant Man-dan’s, and are unpersuasive for the reasons discussed above. However, Appellant Tingle raises two unique arguments: first, that “[c]lass counsel had a conflict of interest and breached" }, { "docid": "20411383", "title": "", "text": "law. Appellees rightly contend that non-jurisdictional defenses such as the failure to state a cause of action are waivable and that courts generally do not permit parties to raise such issues for the first time on appeal. The right of a party to advance this objection is not coextensive with the discretion of the court to consider the issue, however. As we have held, “[c]ourts of appeals are not rigidly limited to issues raised in the tribunal of first instance; they have a fair measure of discretion to determine what questions to consider and resolve for the first time on appeal.” Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 n. 5 (D.C.Cir.1992) (addressing the existence of a cause of action for the first time on appeal in light of a relevant intervening Supreme Court decision). Thus, while we will ordinarily refrain from reaching non-jurisdictional questions that have not been raised by the parties or passed on by the District Court, we may do so on our own motion in “exceptional circumstances.” Id. (“Qualifying circumstances include ... an intervening change in the law....”). Our intervening decision in Cicippio, which definitively resolved a previously open question of law that we find to be dispositive in appellees’ case, surely qualifies as the type of exceptional circumstance that justifies our exercise of discretion. See id. at 419. The issue before us is “purely one of law important in the administration of federal justice, and resolution of the issue does not depend on any additional facts not considered by the district court.” Id. at 419 n.5. The circumstances of this case are even more extraordinary when one considers the stakes: Appellees have obtained a nearly-billion dollar default judgment against a foreign government whose present and future stability has become a central preoccupation of the United States’ foreign policy. In these circumstances, it would be utterly unseemly for this court to ignore the clear implications of our holding in Cicippio. We therefore find it appropriate to exercise our discretion to determine whether appellees’ case must be dismissed for failure to state" }, { "docid": "11513967", "title": "", "text": "II. ANALYSIS Appellants maintain two claims on appeal. First, they renew their claim that the Act dilutes African-American voting strength, in violation of § 2 of the Voting Rights Act, by transferring residents of Kingman Park from Ward Six to Ward Seven and by transferring residents of Chevy Chase from Ward Three to Ward Four. Second, they assert, for the first time on appeal, that the Act results in racially discriminatory gerrymandering in violation of the Fourteenth and Fifteenth Amendments. We hold that the Mayor is entitled to summary judgment on the first claim, and that the second claim is not properly before this court because it was not raised below. A. Threshold Issues A threshold concern is presented by the Mayor’s assertion that he is entitled to legislative immunity from suit, because his authority and actions in connection with the Ward Redistricting Act are strictly legislative in nature. We decline to reach the merits of this argument. In proceedings before the District Court, counsel for the Mayor disavowed any claim to legislative immunity in this action insofar as the Mayor was sued in his official capacity. Tr. of Motions Hearing at 56-67. Therefore, the legislative immunity claim was expressly waived and cannot be resurrected on appeal. We likewise decline to address the merits of the Mayor’s claim, raised for the first time on appeal, that the District of Columbia is not a “State or political subdivision” to which § 2 of the Voting Rights Act applies. See 42 U.S.C. § 1973 (2003). “It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). The Mayor’s claim raises a pure question of law, which is within our discretionary authority to address. See Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 & n. 5 (D.C.Cir.1992). The issue presented, however, is of sufficient public importance and complexity to counsel strongly against deciding it in this posture. Appellants had no opportunity to address" }, { "docid": "17890050", "title": "", "text": "Supreme Court issued its decision in Milner v. Department of the Navy, thereby changing the law upon which the court had relied in granting summary judgment to DHS. See Milner, 131 S.Ct. at 1259. Yet the plaintiff, despite knowing that Milner had been granted certiorari by the Supreme Court, see Pl.’s Reply in Support of its Mot. for Summ. J. at 6-7 (discussing Milner, which at that time was pending on the Supreme Court’s docket), did not file its motion for relief upon reconsideration until ten days after the appeal period closed, see generally Pl.’s Mot. for Recons. Additionally, the plaintiff, for an unarticulated reason, chose not to file a timely appeal even as a decision in Milner was on the horizon. See Ackermann, 340 U.S. at 198, 71 S.Ct. 209 (“Petitioner cannot be relieved of such a choice because hindsight seems to indicate to him that his decision not to appeal was probably wrong, considering the outcome of [a later, favorable] case. There must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from.”). Such an appeal would have been a proper mechanism by which the plaintiff could have raised its challenge based on a change in controlling law. Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 n. 5 (D.C.Cir.1992) (noting that intervening changes in law are among the “exceptional circumstances” warranting consideration for the first time on appeal); Tinker Nat’l Bank v. Union Sav. Bank, 400 F.2d 771, 772 (D.C.Cir.1968) (remanding to district court for reconsideration based on intervening change in law). Granting any reconsideration at this stage would allow for a de facto extension of the plaintiffs appeal period. See Morris v. Adams-Millis Corp., 758 F.2d 1352, 1358 (10th Cir.1985) (noting that allowing a Rule 60(b)(1) motion outside of the appeal period would permit the motion to “serve as an appeal, which would be untimely otherwise”). In turn, allowing the plaintiff to artificially extend its appeal time period in this fashion would embrace an interpretation of the reasonable time limits for a Rule 60(b)(1) motion" }, { "docid": "1958900", "title": "", "text": "(1) adverse employment actions Woodruff claims to have incurred in September 1998 and (2) Woodruffs status as a “qualified individual with a disability” were not raised before the district court and were thus waived. “It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); see also Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1039 (D.C.Cir.2003). Absent “exceptional circumstances,” we do not ordinarily entertain issues first raised on appeal. Marymount Hosp. v. Shalala, 19 F.3d 658, 663 (D.C.Cir.1994); see also Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 n. 5 (D.C.Cir.1992) (listing examples of sufficient circumstances). However, this rule is prudential only, not jurisdictional. Yee v. City of Escondido, 503 U.S. 519, 533, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992). Also, “[o]nce a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.” Id. at 534, 112 S.Ct. 1522. With regard to the September 1998 employment actions, the simple answer is that Woodruff did in fact raise these below. The Second Amended Complaint’s list of allegedly “unlawful employment practices” included “[r]evoking the disability accommodations previously granted to Plaintiff,” with such revocation arguably having taken place on September 3. In his opposition to the Secretary’s motion for summary judgment, Woodruff described as adverse employment actions “a continuing series of events” extending beyond July 10, 1998, including “the rescission of Plaintiffs telecommuting agreement,” and cited the September 3 memo. Pl.’s Memo. Points & Auths. Opp. Def.’s Mot. S.J. at 8. Likewise, in relation to the retaliation claim, Woodruff noted Eoyang’s “September 10, 1998, refusal to return his supervisory duties and honor his telecommuting and maxi-flex schedule agreements.” Id. at 12-13. Thus, Woodruff properly challenged the September 1998 actions before the district court, and we may consider their impact on appeal. The Secretary’s argument challenging Woodruffs claim to be a “qualified individual with a disability”" }, { "docid": "17890051", "title": "", "text": "choices are not to be relieved from.”). Such an appeal would have been a proper mechanism by which the plaintiff could have raised its challenge based on a change in controlling law. Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 n. 5 (D.C.Cir.1992) (noting that intervening changes in law are among the “exceptional circumstances” warranting consideration for the first time on appeal); Tinker Nat’l Bank v. Union Sav. Bank, 400 F.2d 771, 772 (D.C.Cir.1968) (remanding to district court for reconsideration based on intervening change in law). Granting any reconsideration at this stage would allow for a de facto extension of the plaintiffs appeal period. See Morris v. Adams-Millis Corp., 758 F.2d 1352, 1358 (10th Cir.1985) (noting that allowing a Rule 60(b)(1) motion outside of the appeal period would permit the motion to “serve as an appeal, which would be untimely otherwise”). In turn, allowing the plaintiff to artificially extend its appeal time period in this fashion would embrace an interpretation of the reasonable time limits for a Rule 60(b)(1) motion that would undermine the finality of the court’s judgment and promote uncertainty. See Parks, 677 F.2d at 840-41. The court declines to adopt such an interpretation. In sum, the court determines that a Rule 60(b)(1) motion brought due to a change in controlling law is timely only if either the movant has already filed an appeal or if the movant files its motion for relief within the appeal period. See Delta Foods Ltd., 265 F.3d at 1071. Accordingly, the court denies the plaintiffs Rule 60(b)(1) motion as untimely. c. The Plaintiffs Motion Was Not Properly Brought Under Rule 60(b)(6) The plaintiff argues, as a last resort, that if the court were to determine that Rule 60(b)(1) is not an appropriate vehicle for relief, then relief is still appropriate under Rule 60(b)(6), which provides for relief from a judgment for “any ... reason that justifies [such] relief.” Pl.’s Reply at 6; see also Fed.R.Civ.P. 60(b)(6). DHS disagrees, arguing that Rule 60(b)(6) is not an appropriate vehicle to bring the plaintiffs motion for reconsideration in the event" }, { "docid": "17052530", "title": "", "text": "discretion of the courts of appeals the “matter of what questions may be taken up and resolved for the first time on appeal.” Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877-78, 49 L.Ed.2d 826 (1976). In this court, the general rule is that a prevailing party may defend the judgment on any ground decided or raised below. See Rogers v. District of Columbia, 194 F.3d 174 (D.C.Cir.1999); District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084-85 (D.C.Cir.1984). That too is the general rule in the Supreme Court. See, e.g., Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 38-39, 109 S.Ct. 2782, 2788-89, 106 L.Ed.2d 26 (1989). While we have discretion to consider issues not presented to the district court, Roosevelt v. E.I. DuPont de Nemours & Co., 958 F.2d 416, 419 n. 5 (D.C.Cir.1992), the District has offered us no good reason for departing from our general rule. If on remand the District continues to believe that Warren has not alleged constitutional violations, it may file an appropriate motion. Nothing we say in this opinion resolves the issues the District wishes to raise here for the first time. This brings us to the question whether Warren sufficiently alleged that a District custom or policy caused the claimed violations of his constitutional rights. Causation would exist if, for instance, the municipality or one of its policymakers explicitly adopted the policy that was “the moving force of the constitutional violation.” Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38; see City of St. Louis v. Praprotnik, 485 U.S. 112, 123-30, 108 S.Ct. 915, 924-28, 99 L.Ed.2d 107 (1988). Or a policymaker could knowingly ignore a practice that was consistent enough to constitute custom. Praprotnik, 485 U.S. at 130, 108 S.Ct. at 927-28. Or the municipality may not have responded “to a need ... in such a manner as to show ‘deliberate indifference’ to the risk that not addressing the need will result in constitutional violations.” Baker, 326 F.3d at 1306 (citing Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 1205-06, 103 L.Ed.2d 412 (1989), and Daskalea" }, { "docid": "18644334", "title": "", "text": "the Act. Id. § 260. The District argued that it was entitled to an exercise of the district judge’s discretion because it had consulted with experts concerning the implementation of the FLSA, and because there was supposedly considerable uncertainty concerning the appropriate application of the Department’s regulation to public employers. The district judge rejected these contentions. See Kinney v. District of Columbia, Civ. Act. No. 88-3223, Mem.Op. (D.D.C. Sept. 13, 1991). After the district court’s decision and while the District’s appeal was pending, the Department changed its regulation once again. On August 19, 1992 the Secretary issued a new regulation that made section 541.118(a) substantially inapplicable to public employers who are bound by law to dock employees for partial-day absences. See 57 Fed.Reg. 37,666. The Secretary explained in the accompanying commentary that otherwise virtually all public employers would not, as a practical matter, be able to take advantage of the overtime exception for salaried employees. That result, the Secretary thought, would be “out of harmony with the intent of the statute.” Id. at 36,677. II. A. The District of Columbia seeks to take advantage of the Department’s recent regulatory change by claiming, for the first time on appeal, that the Department’s anti-docking regulation (as it existed prior to the August 1992 revision) is ultra vires as applied to public employers. Paralleling the reasoning the Department used in revising the regulation, the District claims that if the anti-docking requirement were applied to public employers — making the salary exception effectively unavailable to them — congressional intent in extending the FLSA to public employers in 1974 would be frustrated: The District cannot point successfully, however, to any “exceptional circumstance[ ]” to justify a departure from our rule that we will not hear an argument made for the first time on appeal. See Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 n. 5 (D.C.Cir.1992); see also Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976) (stating that an appellate court generally will not consider questions not raised below). To be sure, we" }, { "docid": "12053664", "title": "", "text": "the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see Fed, R. Civ. P. 56(c). Because RFRA obliges the government to show that a policy that burdens religious freedom is the least restrictive means to further a compelling interest, the District of Columbia can only survive a summary judgment motion by showing that it has established a genuine issue as to whether its clean-shaven requirement is narrowly tailored to further the interest of protecting firefighters — that is, it must demonstrate it argued and proffered evidence to show that SCBAs are not safe for bearded firefighters. See Fed, R. Civ. P. 56(e). It will not suffice to make that argument for the first time on appeal, NRM Corp. v. Hercules, Inc., 758 F.2d 676, 680 (D.C.Cir.1985), for while review of the grant of summary judgment is de novo, this court reviews only those arguments that were made in the district court, absent exceptional circumstances, see Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Woodruff v. Peters, 482 F.3d 521, 525 (D.C.Cir.2007); Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 n. 5 (D.C.Cir.1992); see also 10A Charles A. Wright, Arthur R. Miller, & Mary K. Kane, Federal Practice and Procedure § 2716 at 282-85 & nn. 12-13 (3d ed.1998). B. On appeal, the District of Columbia suggests two possible reasons that SCBAs might be unsafe for bearded firefighters: (1) a firefighter might “overbreathe” his respirator by inhaling so vigorously that the regulator is unable to supply sufficient clean air to maintain positive pressure, thus drawing in contaminated air through a leak in the face mask seal, or (2) even if positive pressure is maintained, a leak of clean air out of the mask will exhaust the air supply more quickly than would otherwise happen. See Appellant’s Br. 13. However, the record shows the District of Columbia never advanced, and in fact disavowed, any arguments to that effect before the summary judgment stage. In a motions hearing in 2005," }, { "docid": "18644336", "title": "", "text": "have indicated that we might entertain a new argument on appeal if it were justified by, inter alia, an intervening change in the law, see, e.g., Roosevelt, 958 F.2d at 419 n. 5; United States v. Byers, 740 F.2d 1104, 1115 n. 11 (D.C.Cir.1984) (en banc) — such as a Supreme Court decision that could be thought to alter substantially the legal framework that governed the appeal. The District argues that the new Labor Department regulation is just such a change. But by the term “intervening change in the law,” we were not referring to a prospective change that could not affect rights already accrued, and the 1992 DOL regulatory revision implemented only a prospective change. Indeed, the Department withdrew a draft of the regulation that would have altered the application of section 514.118 retroactively, because it concluded that such a change would have constituted invalid retroactive rulemaking under Bowen v. Georgetown University Hospital, 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). See 57 Fed.Reg. 37,678 (1992) (withdrawing a notice of proposed rulemaking originally published at 56 Fed.Reg. 45,828 (1991)). The Department, in promulgating the 1992 regulation, did say that section 541.118, as applied to most public sector employees, was “out of harmony with the intent of the statute,” 57 Fed.Reg. at 37,672, and “inconsistent with Congressional intent,” id. at 37,673. But such statements cannot be taken to mean, as the District of Columbia contends, that DOL declared its own regulation contrary to the statute and invalid ab initio. Besides making it clear that it was acting only prospectively, the Department explicitly relied on its discretionary policymaking authority to “define and delimit” the scope of the section 213(a)(1) exemption. The Secretary noted that section 213(a)(1) left the agency “free to revisit and revise its regulations in the future based on its enforcement experiences,” 57 Fed.Reg. at 37,672, and explained that “[i]n light of the court decisions and representations by affected parties, the Department has determined that strictly applying all aspects of the salary basis rule to the public sector under section [2] 13(a)(1) has produced results that do" } ]

[ { "docid": "12187116", "title": "", "text": "these provisions is that Section 4405(a) applies certain amendment prospectively, and Section 4405(b) applies others retroactively. See Motion Picture Ass’n of Am. v. FCC, 309 F.3d 796, 801 (D.C.Cir.2002) (describing the principle that “ ‘individual sections of a single statute should be construed together’ ”) (quoting Erlenbaugh v. United States, 409 U.S. 239, 244, 93 S.Ct. 477, 34 L.Ed.2d 446 (1972)). The Court also notes that Defendant raised the implications of Section 4405(b) in its Motion and Opposition to Plaintiffs Motion, and that Plaintiff failed to respond entirely. In this district, when a party responds to some but not all arguments raised on a Motion for Summary Judgment, a court may fairly view the unacknowledged arguments as conceded. See Hodes v. United States Dep’t of Housing & Urban Devel., 532 F.Supp.2d 108, 117 (D.D.C.2008) (“[a] Party that fads to refute an opposing party’s argument on Summary Judgment may be found to have conceded the point”) (Kollar-Kotelly, J.) (citing Speaks v. D.C., Civ. A. No. 03-1965, 2006 WL 5259200 at *4 n. 1., 2006 U.S. Dist. LEXIS 16776 at :|!12 n. 1 (D.D.C. Apr. 6, 2006)). Plaintiff argues that Defendant’s interpretation of Section 4405(a) creates superfluous text because Congress could have written that AIPA’s changes would “apply to any application filed on or after [May 29, 2000] — and stopped there.” Pl.’s Mot. at 30. The Court agrees with Defendant that Plaintiff has confused “applicability” with “effectiveness.” See Def.’s Opp’n at 16. Section 4405(a) establishes the effective date of the identified amendments (May 29, 2000), and then it identifies the class of patent applications to which those amendments apply (patent applications filed on or after May 29, 2000). If Congress had set an effective date without specifying the applicability of the amendments, it would have been entirely unclear as to which patent applications were affected by the AIPA amendments. By including the applicability language, Congress clarified that the provisions identified in Section 4405(a) would apply only to those patent applications filed after May 29, 2000. Similarly, had Congress specified that Section 4402 applied only to patent applications filed after May 29," } ]

[ { "docid": "10134205", "title": "", "text": "for the 2010 OIG investigation. Griscavage Decl., ECF No. [43-4], ¶ 1. Plaintiff contends to the contrary' that the OIG investigation was “initiated by Tam Wyatt.” Pl.’s Opp’n at 4. In support of this proposition, Plaintiff cites to the Report of Investigation, Synopsis, IA 09-0219. The section of the Report upon which Plaintiff relies states: “This OIG investigation was predicated on receipt of information from the United States Marshals Service (USMS) Office of Internal Investigations (Oil) that Supervisory Deputy United States Marshal (SDUSM) Tam Wyatt alleged Deputy United States Marshal ] ... Willard King submitted time and attendance (T & A) documents claiming unworked hours of overtime in the cellblock at Superior Court.” Report of Investigation, Mem. Op. Attachment 1, at 5 (Synopsis). Having closely reviewed the Report of Investigation, the Griscavage Declaration, and the record as a whole, the Court finds that there is a genuine dispute of material fact as to whether Wyatt’s allegations against Plaintiff were a proximate cause of the 2010 OIG investigation being opened. Defendants contend that OIG opened the investigation into Plaintiff because IA referred to OIG evidence, discovered through a scheduled audit, that Plaintiff had requested overtime pay greatly exceeding other deputies. Defs.’ Mot. at 5; Defs.’ Stmt. ¶ 15. Defendants suggest that Wyatt’s 2008 complaint was simply one document of many that OIG reviewed once it had opened the investigation. Defs.’ Mot. at 5; Defs.’ Stmt. ¶ 17. However, the Court finds that the record, specifically the Griscavage Declaration and the Report of Investigation, could be read by a reasonable juror to support Plaintiffs contention that the decision to open the 2010 OIG investigation was actually made based on Wyatt’s 2008 complaint. The Griscavage Declaration states that IA referred the investigation to OIG on April 13, 2009. Griscavage Decl. ¶ 7. The OIG case number given to that referral was 2009-4792. Report of Investigation, at 1 (File Cover Sheet). The OIG complaint forms associated with this case number affirm, _as Defendants contend, that the referral received by OIG was based on the information discovered during the scheduled audit. See id. (“During an" }, { "docid": "8685084", "title": "", "text": "employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. 42 U.S.C. § 2000e-3(a) (cited in Williams v. Boorstin, 663 F.2d 109, 115 (D.C.Cir.1980)). Therefore, by filing an employment discrimination class-action complaint, the plaintiff engaged in a protected activity. Id. Considering the second factor of the pri-ma-facie test, the court finds for the purposes of summary judgment that the defendant offered Mr. Johnson a choice of resignation or termination. Def.’s Statement ¶¶ 96-97; Compl. at 11. The plaintiff refused to resign, and he received an official termination notice on February 16, 2000. Def.’s Statement ¶¶ 99-100; Compl. Ex. 14. These facts present evidence sufficient to show that the defendant took an adverse employment action against Mr. Johnson. Brown, 199 F.3d at 455; Anderson, 477 U.S. at 252, 255, 106 S.Ct. 2505. Finally, regarding the third prong, a plaintiff can establish causation by showing that the defendant had knowledge of the protected activity and that the adverse personnel action took place shortly after that activity. Mitchell, 759 F.2d at 86. Here, the defendant concedes to awareness of Mr. Johnson’s role in the class-action lawsuit. Mot. for Summ. J. Ex. H. Furthermore, the class-action suit was ongoing at the time the defendant terminated Mr. Johnson. Mot. for Summ. J. Ex. E. Between June 1999 and February 2000— when Mr. Johnson worked at the OIG— the class-action plaintiffs made a motion to disburse funds from the monitoring fund, and both sides submitted a joint motion to extend and amend the settlement agreement. Id. The presiding judge subsequently approved a Settlement Agreement Amendment on May 17, 2000. Id. The defendant terminated the plaintiff, effective March 1, 2000. Def.’s Statement ¶ 100. In other words, the temporal proximity between the protected activity and adverse personnel action supports the necessary element of causation. Mitchell, 759 F.2d at 86. In sum, because the evidence supports the existence of all three elements of the prima-facie case, the plaintiff has demonstrated a prima-facie cáse of retaliation. Id. 2. Mr. Maddox Provides" }, { "docid": "14398781", "title": "", "text": "Order, and Butler — contrary to the contents of his declaration — is no longer employed by the defendant. See Def.’s Reply Def. Mot. Strike at 5; id. Ex. 2, ECF No. 75-2 (contracting action form and email demonstrating that Butler resigned in 2009). Second, the manner in which the plaintiff submitted the Butler Declaration was, in particular, not “substantially justified” or “harmless.” The plaintiff did not seek leave of the Court to file this late declaration, nor did she confer with the defendant before doing so. The plaintiff did not ask the Court to reopen expert discovery or otherwise provide the defendant with an opportunity to depose this witness before the close of discovery. See Wannall, 292 F.R.D. at 33. Moreover, the plaintiff conspicuously omitted any discussion of this new declarant in her opposition motion, merely citing to the declaration itself, which was attached as one of 28 exhibits submitted with the plaintiff’s opposition. This was highly prejudicial to the defendant. Under the circumstances here, exclusion is appropriate. See Daniels v. D.C., 15 F.Supp.3d 62, 72-73 (D.D.C.2014) (recognizing that exclusion is the appropriate remedy for late disclosed witnesses); Blake v. Securitas Sec. Servs., Inc., 292 F.R.D. 15, 19 (D.D.C.2013) (excluding witnesses from rebuttal expert report that were not disclosed during discovery as “the overwhelming weight of authority is that preclusion is required and mandatory absent some unusual or extenuating circumstances-that is, substantial justification.” (quoting Elion v. Jackson, No. 05-0992, 2006 WL 2583694, at *1 (D.D.C. Sept. 8, 2006) (emphasis in original))); Nuskey v. Hochberg, 723 F.Supp.2d 229, 233 n. 1 (D.D.C.2010) (ordering that witnesses who were not disclosed under Rule 26 would be excluded absent a showing that plaintiffs “failure to identify them earlier was substantially justified or harmless”); Thomas v. Paulson, 507 F.Supp.2d 59, 81 (D.D.C.2007) (excluding affidavit attached to plaintiffs opposition from consideration of defendant’s summary judgment motion because witness was never disclosed during discovery). Here, the plaintiff breached her discovery obligations by failing to disclose Butler after over one year of discovery and has made no showing that the nondisclosure was substantially justified or harmless. In" }, { "docid": "18180551", "title": "", "text": "MEMORANDUM OPINION [Dkt. ## 18, 33] RICHARD J. LEON, United States District Judge Plaintiff Jerry W. Paulk (“plaintiff’ or “Paulk”) commenced this action against the Architect of the Capitol (“defendant” or “AOC”) on July 17, 2012, seeking damages for alleged violations of the Congressional Accountability Act of 1995 (“CAA”), 2 ■ U.S.C. § 1301- et seq. See Compl. ¶ 2. [Dkt. # 1]. Now before the Court is defendant’s Motion for Summary Judgment. See Def.’s Mot. for Summ. J. (“Def.’s Mot.”) [Dkt. # 18]. Upon consideration of the parties’ pleadings, the entire record in this case, and the relevant law, the Court GRANTS defendant’s Motion for Summary Judgment and dismisses this action in its entirety. BACKGROUND Plaintiff is an electrician who was employed by defendant AOC as a night shift tempdrary employee in the House Office Buildings (“HOB”) for approximately thirteen years. See Compl. ¶¶ 8-9. During his tenure, plaintiff worked on a number of Emergency Lighting Projects in the Long-worth and Rayburn House Office buildings. See Def.’s Mot. Ex. 3 at 28:16-29:2 [Dkt. # 18-3]. Plaintiff alleges that in August 2010, David Smith (“Smith”) and Kevin Banks (“Banks”) — both electrical division supervisors — ordered plaintiff and other night shift electricians to work in areas and with materials containing asbestos. Compl. ¶ 10. Although plaintiff and the other electricians objected to handling asbestos without proper safety equipment, they were warned by their supervisors that “there would be consequences for failing to do as instructed.” Compl. ¶ 10. At the request of plaintiff s work partner, Richard Hutson, AOC’s Inspector General (“OIG”) launched an investigation into whether electricians were instructed to disturb asbestos-containing materials without proper safety precautions. Pl.’s Opp’n to Summ. J. (“Pl.’s Opp’n) at 3 [Dkt. # 23]. The OIG interviewed plaintiff on April 22, 2011. Compl. ¶ 13. Plaintiffs employment was terminated in June 2011. Compl. ¶ 15; Def.’s Stmt. Material Facts Not In Dispute (“Def.’s SMF”) ¶ 10 [Dkt. # 18-19]. Believing that he was terminated because of his OIG testimony, plaintiff sought counseling with the Office of Compliance (“OCC”) and was reinstated to his temporary" }, { "docid": "5118425", "title": "", "text": "v. U.S. Dep’t of Justice, 3 F.3d 1533, 1540 (D.C. Cir. 1993) (emphasis omitted). “[A]n ongoing criminal investigation typically triggers Exemption 7(A).” Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 746 F.3d 1082, 1098 (D.C. Cir. 2014). “[S]o long as the investigation continues to gather evidence for a' possible future criminal case, and that case would be jeopardized by the premature release of that evidence, Exemption 7(A) applies:” Juarez v. Dep’t of Justice, 518 F.3d 54, 59 (D.C. Cir. 2008). Plaintiff advances three main arguments to contest the applicability of . Exemption 7(A) and the FBI’s compliance with FOIA. First, she argues that the FBI has not demonstrated that the records relate to a prospective law enforcement proceeding. Plaintiff asserts that she cannot be the subject of any prospective law enforcement proceeding because she already has been prosecuted and. convicte,d for the conduct the FBI was investigating. Pl.’s Cross-Mot. for Summ. J. and Resp. to Defs.’ Mot. for Summ. J., ECF No. 14 [hereinafter PL’s Cross-Mot.], at 11-12, 17, 21. As a. result, she argues, any material pertaining, to her alone cannot be withheld under Exemption 7(A). Id. at 14-15. Second, she contends that Defendants have not sufficiently justified their categorical withholding of all responsive documents. Id. at 11-13, 15-18. Finally, she argues that Defendants have failed to satisfy their obligation to release any reasonably segregable portions of responsive documents. Id. at 18-25. The court considers each argument in turn. A. Whether There is an Ongoing Investigation To show the existence of an ongoing investigation, Defendants have offered two declarations from David M. Hardy, Section Chief of the Record/Information Dissemination Section of the FBI’s Records Management Division. See Hardy Decl.; Defs.’ Reply in Supp. of Mot. for Summ. J. and Opp’n to PL’s Cross-Mot. for Summ. J., ECF No. 16, Second Decl. of David M. Hardy, ECF No. 16-1 [hereinafter 2d Hardy Decl.]. In his first declaration, Hardy states that “[t]he records responsive to plaintiffs request are part of the FBI’s active, ongoing criminal investigation into the ... disclosure of classified information [on the WikiLeaks website].”" }, { "docid": "15004601", "title": "", "text": "Opp’n to Pl.’s Mot. to Compel at 3-4.) The disclosed information most likely consisted of one or more documents from an investigation into plaintiffs conduct by defendant’s Office of Professional Responsibility (“OPR”). (Compl. ¶¶ 109-113.) The OPR began an investigation in November of 2003 after the United States Attorney’s Office for the Eastern District of Michigan referred allegations of prosecutorial misconduct against Assistant United States Attorney Richard Convertino— former lead trial counsel in the case of United, States v. Koubriti (Def.’s Opp’n to PL’s Mot. to Compel Ex. 12 at 1.) The OPR crafted a series of letters stating what issues the OPR would investigate and which it would not. (Id.) A limited number of people had access to these private letters. On January 17, 2004 an article addressing the investigation by OPR was written by David Ashenfelter and published in the Detroit Free Press. (Id.) Following the leak, the Office of the Inspector General (“OIG”) began an investigation to determine who provided the information to the press, ultimately concluding that there was insufficient evidence to prove, by a preponderance of the evidence, who the leaker was. (Id. Ex. 12 at 16.) Plaintiff filed this motion to compel production of 736 various documents that plaintiff believes are responsive to his discovery requests. (Id. at 1, Exs. 1, 2.) Defendant has categorized these documents as privileged, either by the deliberative process privilege, the work product doctrine, or the attorney-client privilege and thus claims the documents are not discoverable. (Id. at 3-27.) Plaintiff has requested that the Court review the documents in camera “to the extent that the applicability of the deliberative process privilege is not clear....” (See PL’s Reply to Def.’s Opp’n to PL’s Mot. to Compel at 1.) DISCUSSION Plaintiffs motion to compel discovery is DENIED because the 736 documents requested are protected by various privileges. Fed.R.Civ.P. 26(b)(1) requires a party to disclose any material the other party requests that is relevant to plaintiffs claim or defendant’s defense, if it is not protected by a privilege. Fed.R.Civ.P. 26(b)(1) (“... parties may obtain discovery regarding any matter, not privileged, that is" }, { "docid": "3418705", "title": "", "text": "the origin of the subject merchandise. Id at 18. Further, Plaintiff argues that Lung Huang lacked saccharin production facilities during the 2007-2012 time period and could not have produced the saccharin imported by Univar. Id at 17-18. Moreover, because HTC was the only saccharin producer in Taiwan during this time period, and it did not sell any saccharin to Univar or Lung Huang during this period, Uni-var’s imports could not have been of Taiwanese origin. Id at 18. To support its position, Plaintiff filed a series of exhibits with the court, including affidavits and reports prepared by DHS personnel responsible for the underlying investigation. See generally, Confidential Aff. of Special Agent Patrick Deas in Supp. of Opp’n. to Def.’s Mot. for Summ. J. (“Deas Aff.”), ECF No. 30-2 (and accompanying exhibits); Confidential Aff. of Special Agent Kyle Maher in Supp. of Opp’n. to Def.’s Mot. for Summ. J. (“Maher Aff.”), ECF No. 30-9 (and accompanying exhibits); Tsui Aff. (and accompanying exhibits); Confidential Deck of Stephen C. Tosini (“Tosini Deck”), ECF No. 30-20 (and accompanying exhibits). Defendant contests the admissibility of Plaintiffs evidence. Def.’s Reply at 4-6. Plaintiff has not had an opportunity to respond to Defendant’s objections to its affidavits, declarations and reports with respect to the 23 entries because the objections were raised in Defendant’s reply. See Def.’s Reply at 4-6. As the moving party, Defendant has the burden to show that there are no material facts in dispute related to its claim. See Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. In this case, Defendant may discharge this burden by showing that there is an absence of evidence supporting Plaintiffs case. See id at 325, 106 S.Ct. 2548. However, when discovery is ongoing, the court must consider whether adequate time for discovery has elapsed so that the non-movant is not unfairly disadvantaged by a premature summary judgment motion. See id at 322, 326, 106 S.Ct. 2548. Defendant contends that Plaintiff is unable to produce any evidence showing entries of allegedly transshipped saccharin prior to March 2010 (as set forth in the Taiwanese customs data). Discovery, however, is" }, { "docid": "15004617", "title": "", "text": "is that the DOJ attempted to cover-up the leakers(s) and therefore, the documents may expose information regarding this concern. (See PL’s Reply to Def.’s Opp’n to Mot. to Compel at 2-5.) Plaintiff is essentially trying to “relitigate his previously dismissed retaliation claim.” (Def.’s Surreply in Opp’n to PL’s Mot. to Compel at 2.) The retaliation claim was dismissed on October 19th, 2005 because the Court lacked subject-matter jurisdiction. (Mem. and Op., 393 F.Supp.2d 42, 49 (D.D.C.2005).) Plaintiff even states himself that “the leak was just one part of the DOJ’s greater campaign of retaliation against him for testifying to Congress,” citing to the earlier dismissed count of plaintiffs original Complaint. (PL’s Reply to Def.’s Opp’n to PL’s Mot. to Compel at 4.) Plaintiff attempts to circumvent the deliberative process privilege by raising this second concern of a grand scheme of retaliation and cover-up. i. Government Intent and Misconduct Exceptions Applied Neither exception applies to the documents requested based on plaintiffs argument that there was a grand cover-up scheme created by the DOJ. As discussed above the government’s intent is not at issue because plaintiff has not produced any evidence to suggest a cover-up by DOJ and therefore, the government’s intent exception does not apply. The documents being challenged are not documents that discuss a potential deliberate decision by the government to cover-up the identity of the leaker(s) — which would reveal the government’s intent. Despite plaintiffs attempts to view the privileged documents there is no evidence of misconduct. “If there is any reason to believe the information sought may shed light on government misconduct, public policy (as embodied by the law) demands that the misconduct not be shielded merely because it happens to be predecisional and deliberative.” Alexander, 186 F.R.D. at 177-78. Other than plaintiffs assertions that because the OIG investigator was unable to come to a conclusion and several DOJ employees disliked plaintiff there must have been misconduct, plaintiff has not provided any evidence of misconduct, including any evidence that would challenge the government’s intent. Plaintiff must provide enough reason to believe misconduct took place. Cf. Hinckley v. United" }, { "docid": "10134212", "title": "", "text": "years after Plaintiffs protected activity — the fact remains that Wyatt made her complaint in March 2008, several months before Plaintiffs November 2008 protected activity. As a result, no retaliatory motive could be assigned to Wyatt’s 2008 complaint. Plaintiff does not point to any evidence supporting or even suggesting that Wyatt made a new complaint after Plaintiff engaged in protected activity or that such a new complaint was the basis for opening the 2010 OIG investigation. Indeed, the Report of Investigation upon which Plaintiff relies specifically points tó Wyatt’s 2008 complaint as the “predicating information” for the August 2009 investigation and would most reasonably be understood as referring back to that complaint in the Synopsis of the 2010 investigation. Based on the facts in the record and Plaintiffs allegations, the 2010 OIG investigation could only arguably be infected with retaliatory motive if the facts supported a finding that Wyatt’s 2008 com plaint had been made in retaliation for Plaintiffs protected activity. Since Plaintiffs protected activity occurred after Wyatt made the 2008 complaint, it is implausible for the 2010 investigation to have been initiated in retaliation for Plaintiffs protected activity. Accordingly, the Court shall grant Defendants’ Motion for Summary Judgment as to Plaintiffs retaliation claim. IY. CONCLUSION For the foregoing reasons, Defendants’ Motion for Summary Judgment is DENIED as to Plaintiffs discrimination claim and GRANTED as to Plaintiffs retaliation claim. An appropriate Order accompanies this Memorandum Opinion. ATTACHMENT 1 . Defendants' Motion for Summary Judgment (\"Defs.’ Mot.\"), ECF No. [43]; Defendants' Statement of Material Facts (\"Defs.’ Stmt.”), ECF No. [43-2]; Plaintiff's Opposition to Motion for Summary Judgment (\"PL’s Opp'n”), ECF No. [45]; Defendants' Reply in Support of Motion for Summary Judgment (\"Defs.’ Reply”), ECF No. [46], . Although irrelevant to Plaintiff's claims which are based exclusively on the adverse effect of the initiation of the OIG investigation on Plaintiff's expected promotion, the Court notes, for the sake of completeness, that the OIG investigation found evidence that Plaintiff had submitted fraudulent time and attendance records. Defs.’ Stmt. ¶ 18. OIG referred the investigation to IA for adjudication on October 12, 2010. Id." }, { "docid": "13190015", "title": "", "text": "CIAs. The plaintiff did not raise this omission in its Motion for Reconsideration, either. See generally PL’s Mot. Rec. . The defendant and defendant-intervenors maintain that their voluntary release of certain responsive documents \"should not be construed as a concession or waiver of any kind.” Status of Records Remaining in Dispute (\"Rec.Status”) at 3 n.5, ECF No. 46. . In lieu of filing a detailed opposition to the plaintiff's Renewed Motion for Summary Judgment, the defendant has adopted the \"factual and legal arguments\" made by the defendant-intervenors, since the adequacy of the defendant’s search for the allegedly missing Pfizer § V.B.6 documents is no longer contested. See Def.’s Opp’n PL’s 2d Mot. & Def.’s Reply Supp. Def.’s 2d Mot. (“Def.'s Opp’n”) at 1, ECF No. 60. . The documents previously listed as in dispute on the initial Joint Status Report but no longer in dispute are: Pfizer Bates Nos. OIG 000123-000124; OIG 000126; OIG 000128; OIG 000129-000131; OIG 000137-000138; OIG 000139; OIG 000140; OIG 000141; OIG 001921-1923; OIG 001925; OIG 001946-001947; OIG 001949; OIG 001951; OIG 001953; OIG 003827-003829; OIG 003831; OIG 003846-003847; OIG 003849; OIG 003851; OIG 003853; OIG 005967-005969; OIG 005971; OIG 005985-005986; OIG 005988; OIG 005990; OIG 005992; OIG 007971-007975; OIG 007991-007992; OIG 007994; OIG 007996; OIG 007998; Purdue Bates Nos. OIG 000430- 000436; OIG 000473-000500; OIG 001082-001088. See Rec. Status at 3-4; Parties’ Update to Joint List of Records Remaining in Dispute/2d Supplemental Purdue Vaughn Index (\"Suppl.Rec.Status”) Appendix B at B-l, ECF No. 64. .Indeed, defendant-intervenor Purdue recognized the confusion and apparently “requested that HHS file a revised Supplemental Vaughn Index incorporating the two additional documents Plaintiff has put at issue here,” Purdue’s Reply Supp. Purdue’s 2d. Mot (\"Purdue’s 2d Reply”) at 6 n.4, ECF No. 58, though no such supplemental Vaughn index was filed. . Pfizer and Purdue’s CIAs were filed by the defendant along with its first Motion for Summary Judgment, ECF No. 22. See Decl. of Edward Nowicki, Pfizer Vice President & Assistant General Counsel, Deputy Compliance Officer — Global Programs (\"1st Nowicki Decl.”) Ex. 3, ECF No. 22-1 (reproducing Pfizer CIA); Def.’s" }, { "docid": "20332544", "title": "", "text": "administrative complaint included three separate claims. Two of those claims were the same two claims that are at issue in this action— namely, the Non-Selection Claim and the Failure-to-Promote Claim. See Def.’s Stmt. ¶¶ 59-61 & Exs. AA-CC; Pl.’s Stmt. ¶¶ 59-61. The third claim was based on an allegation that Glass was discriminated against on the basis of her race when she was not promoted to the position of a grade GS-14 Safety Defects Engineer in October 2006, the year before the events that give rise to the Failure-to-Promote Claim at issue in this action. See Def.’s Stmt. ¶¶ 59-61 & Exs. AA-CC; Pl.’s Stmt. ¶¶ 59-61. On the administrative level, the NHTSA dismissed the last of these claims — the October 2006 failure-to-promote claim — on the basis that Glass failed to initiate contact with an EEO counselor within 45 days of the alleged underlying conduct. Def.’s Stmt. ¶ 60 & Ex. AA; PL’s Stmt. 1Í 60. Unsurprisingly, the NHTSA raises the same exhaustion argument in its opening memorandum, arguing that Glass failed to timely exhaust her administrative remedies as to her October 2006 non-promotion claim because she failed to initiate contact with an EEO counselor within 45 days of the underlying conduct. See Def.’s Mem. at 19. In opposition, Glass offers no rejoinder to the argument. In this Circuit, “it is well understood ... that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.” Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C. 2003), aff'd, 98 Fed.Appx. 8 (D.C.Cir.2004); accord Lewis v. District of Columbia, No. 10-5275, 2011 WL 321711, at *1 (D.C.Cir. Feb. 2, 2011) (per curiam). Because Glass has completely failed to contest the NHTSA’s argument, the Court shall, in an exercise of its discretion, treat the argument as conceded. Regardless, the record supports the NHTSA’s position. Glass did not initiate contact with an EEO counselor until June 19, 2007, meaning that she can only pursue" }, { "docid": "9864322", "title": "", "text": "them comparators. The second set of alleged comparators identified by plaintiff includes Officers Mooney and Crouch. While the conduct of these officers was similar to plaintiffs conduct insofar as they both caused traffic accidents while operating UCSP vehicles, there is an insufficient basis to conclude that their employment situation was “nearly identical” to the plaintiffs. Plaintiff has presented no evidence that these officers’ traffic accidents occurred after improperly proceeding Code One to canvass for a suspect, that their accident caused the level of damage to others that plaintiffs accident did, or that they refused to accept responsibility for their actions. Ultimately, the Court concludes that plaintiff is unable to sustain its burden of establishing a prima facie case of discrimination on the grounds that defendant removed plaintiff from his USCP vehicle, assigned him to a fixed post, and required that he complete a driver recertification course. In addition, plaintiff has not presented sufficient evidence that a reasonable jury could conclude that defendant’s legitimate, non-discriminatory reason for suspending him for five days without pay was actually a pretext for discriminating against him on the basis of race. The Court must therefore grant defendant’s summary judgment motion on plaintiffs discrimination claim. III. RETALIATION As defendant correctly notes in its Reply, “Plaintiffs Opposition does not appear to address any of Defendant’s arguments regarding retaliation.” (Def.’s Reply to Pl.’s Opp. to Mot. for Summ. J., Mar. 6, 2014 [EOF No. 28]. at 7.) In fact, the word “retaliation” does not even appear in plaintiffs opposition. For this reason alone, the Court may treat defendant’s argument as conceded and defendant’s motion for summary judgment on plaintiffs retaliation claim will be granted. See Hopkins v. General Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003) (“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”); Day v. D.C. Dep’t of Consumer & Regulatory Affairs, 191 F.Supp.2d 154, 159 (D.D.C.2002) (“If a party fails to counter" }, { "docid": "9068182", "title": "", "text": "24, 2017. \"The rule governing cross-motions for summary judgment ... is that neither party waives the right to a full trial on the merits by filing its own motion; each side concedes that no material facts are at issue only for the purposes of its own motion.\" McKenzie v. Sawyer , 684 F.2d 62, 68 n.3 (D.C. Cir. 1982). \"A Vaughn index describes the documents withheld or redacted and the FOIA exemptions invoked, and explains why each exemption applies.\" Prison Legal News v. Samuels , 787 F.3d 1142, 1145 n.1 (D.C. Cir. 2015). After the FBI produced, on September 22, 2017, six additional pages documenting its decision to close the investigation into the plaintiff, see Fourth Hardy Decl. ¶ 4, the plaintiff advised the FBI that \"she intend[ed] to challenge the FBI's withholding of attorney work product\" on one of the six new pages. Defs.' Reply at 10. The plaintiff later abandoned this argument. See Pl.'s Reply at 3 n.6. The plaintiff requests in camera review of the three pages at issue to determine whether the FBI \"has adequately segregated completely factual material.\" Pl.'s Reply at 11. The segregability argument will be addressed below, infra Part III.C. The FBI uses the term \"electronic communication\" to refer to communications \"within the FBI in a consistent format that can be uploaded by the originating Division or office, transmitted, and downloaded by recipient Divisions or offices within the FBI's internal computer network.\" FBI Vaughn Index at 3 n.6. The plaintiff further claims that the FBI \"has consistently mischaracterized the circumstances surrounding its initiation of its investigation\" by claiming that USACIC asked the FBI to investigate the plaintiff, thereby \"attempt[ing] to establish a law enforcement purpose after the fact.\" Pl.'s Reply at 7 (capitalization omitted). While the parties dispute which agency requested the investigation into the plaintiff's involvement in this ambush, they agree that the FBI opened an investigation. See Defs.' Mot., Ex. 1, Mem. Supp. Second Mot. Summ. J. (\"Defs.' Mem.\") at 7, ECF No. 24-1; Pl.'s Cross-Mot. at 3. Whether USACIC requested the investigation or the FBI independently initiated the investigation does" }, { "docid": "9728743", "title": "", "text": "2008 letter from K.L. Myrick, Chief, Operations Unit, FOIA/Records Management Section). Of the 608 pages referred, “only 74 pages contained the plaintiff[’]s name or other identifying information.” Id. ¶ 6. The DEA recommended that “the names of DEA laboratory personnel ... be withheld.” Little Decl. ¶ 15. Because the DEA “could not determine whether the remaining 534 pages were responsive to the plaintiff, [it asked] that the FBI make the determination.” Hardy III Decl. ¶ 6. From the lab reports, the FBI, in turn, redacted “only the names of the FBI Special Agents contained therein” under FOIA Exemptions 6 and 7(C), id. ¶ 8, and released the 74 redacted pages to plaintiff on June 16, 2008. Defs.’ Reply Brief in Supp. of Mot. for Summ. J. (“Defs.’ Reply”), Fourth Decl. of David M. Hardy (“Hardy IV Deck”) ¶ 12 & Ex. A (June 18, 2008 letter from D.M. Hardy). c.CBP The three pages of records referred by the FBIHQ to the CBP were described as “two pages of [Treasury Enforcement Communications System (“TECS”) ] documents (Document Numbers 001 and 002)” and “an additional, related page from TECS (Document Number 003).” Notice of Filing [# 24], Deck of Mark Hanson (“Hanson Deck”) ¶ 4 & Ex. A (Vaughn Index). The CBP released these records in part after redacting information under Exemptions 2, 6 and 7(C). See id. ¶¶ 9, 11, 14 & Ex. A. B. FOIA Requests to the EOUSA 1. Request No. 06-1738 On March 8, 2006, the plaintiff submitted a FOIA request to the EOUSA seeking the following information: LAB REPORT, INDICTMENT, THE RULE 11, APPLICATION OF WHICH WAS SIGNED BY [PLAINTIFF] & THE RECORDED F.B.I. TAPES SERIES NUMBERS WITH THE DATES OF RECORDINGS, & IF POSSIBLE PLEASE PROVED [sic] [THE PLAINTIFF] WITH THE LOCATIONS OF SAID RECORDINGS. Compl., Ex. F-22 (Mar. 8, 2006 FOIA Req.) (capitalization in original); see Defs.’ Mot. for an Extension of Time to Respond to the Compl. [# 15], Deck of Dione Jackson Stearns (“Stearns I Deck”) ¶20. Although the EOUSA received three subsequent requests from the plaintiff, see Compl., Ex. F-25 (June 13," }, { "docid": "8685065", "title": "", "text": "supervisors, respectively. Id. ¶¶ 42-43. Defendant Maddox instructed Mr. Bowie to offer the plaintiff a choice of resignation or termination. Id. ¶ 97. Defendant Maddox claims he had become convinced that the plaintiff lacked the focus expected of an experienced senior investigator, citing the plaintiffs inability to “salvage” a report regarding halfway houses and his “excessive actions” in serving a subpoena. Mot. for Summ. J. at 25, Ex. H. On or around February 9, 2000, defendant Maddox purportedly asked Mr. Marsilio if he believed that the plaintiff was a “loose cannon.” Compl. at 14. According to the plaintiff, Mr. Marsilio responded that Mr. Johnson was one of his “best agents.” Id. Nonetheless, the OIG sent the plaintiff a termination letter on February 16, 2000, and the discharge was effective March 1, 2000. Def.’s Statement ¶ 100. The plaintiff filed the instant complaint on November 15, 2000. The plaintiff alleges that the defendants discriminated against him based on his race and retaliated against him due to his prior EEO activity against the FBI. These actions, he contends, led to his retirement from the FBI in 1999 and his reassignment within and subsequent termination from the OIG in 1999 and 2000. Compl. at 3, 5, 9, 14. On June 21, 2001, the court ruled on the defendants’ motions to dismiss, dismissing all of the defendants except for defendant Maddox. Mem. Op. dated June 21, 2001. Subsequently, defendant Maddox filed a motion for summary judgment. In the summary-judgment motion, Mr. Maddox asserts that the plaintiff (1) failed to state a claim for race discrimination; (2) failed to make a prima-facie case of retaliatory reassignment; and (3) did not establish a prima-facie case of retaliatory termination. For the reasons that follow, the court grants the defendant’s motion for summary judgment with regard to the first two arguments, and denies the motion as it pertains to the third argument. III. ANALYSIS A. Legal Standard for Motion for Summary Judgment Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no" }, { "docid": "7281686", "title": "", "text": "documents. See Pi’s Reply in Supp. PL’s Mot. Summ. J. (“PL’s Reply”) at 20-21, ECF No. 34. The plaintiffs declarant submitted copies of the heavily redacted versions of the documents corresponding to Vaughn index numbers 174, 175 and 176. See Murray Suppl. Decl., Ex. 1 Attachs. D, E, and F (Bates Nos. OIG-009386, OIG-009420, OIG-009428). The opening paragraphs of each letter indicate that Pfizer is responding to specific OIG requests for additional information, but nowhere indicate that this information is provided to comply with the CIA’s Section V.B.6. The plaintiff claims that these documents “provide only ‘supplemental information that [OIG] requested’ in response to Pfizer’s annual reports,” PL’s Reply at 20, rather than submitting Pfizer’s own independent “review [of] the Internal Review Organizations findings and recommendations, and any other observations ... pursuant to Section III.D” of the CIA. See, e.g., Murray Decl. Ex. 3 Attach. H, Bates No. OIG-003715; Murray Suppl. Decl. Ex. 1 Attach. F, Bates No. OIG-009428. Thus, as a factual matter, the plaintiff has raised a significant question as to whether the letters listed in the Vaughn index entries 174, 175 and 176 actually correspond to the information referenced in the CIA’s Section V.B.6. The defendant nowhere adequately explains these factual discrepancies. Rather, the defendant’s fallback position is that the law does not require the agency to do any more searching since the agency has demonstrated in affidavits that it “conducted a reasonable search,” and no bad faith has been alleged. Def.’s Reply at 4. While “the adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search,” see Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C.Cir.2003), “if a review of the record raises substantial doubt, particularly in view of ‘well defined requests and positive indications of overlooked materials, summary judgment is inappropriate,” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C.Cir.1999) (quoting Founding Church of Scientology v. Nat’l Sec. Agency, 610 F.2d 824, 837 (D.C.Cir.1979)). In this case, the defendant concedes the existence of Pfizer Section" }, { "docid": "10134206", "title": "", "text": "investigation into Plaintiff because IA referred to OIG evidence, discovered through a scheduled audit, that Plaintiff had requested overtime pay greatly exceeding other deputies. Defs.’ Mot. at 5; Defs.’ Stmt. ¶ 15. Defendants suggest that Wyatt’s 2008 complaint was simply one document of many that OIG reviewed once it had opened the investigation. Defs.’ Mot. at 5; Defs.’ Stmt. ¶ 17. However, the Court finds that the record, specifically the Griscavage Declaration and the Report of Investigation, could be read by a reasonable juror to support Plaintiffs contention that the decision to open the 2010 OIG investigation was actually made based on Wyatt’s 2008 complaint. The Griscavage Declaration states that IA referred the investigation to OIG on April 13, 2009. Griscavage Decl. ¶ 7. The OIG case number given to that referral was 2009-4792. Report of Investigation, at 1 (File Cover Sheet). The OIG complaint forms associated with this case number affirm, _as Defendants contend, that the referral received by OIG was based on the information discovered during the scheduled audit. See id. (“During an investigation of overtime hours billed in DC/ SC, the overtime hours billed by DUSM Willard King were deemed to be potentially excessive ... ”); id. at 4 (Case Summary; Allegation) (same). After discussing the referral to OIG, the Griscavage Declaration explains that “[a]mong the documents reviewed by OIG was the March 6, 2008 complaint by SDUSM Wyatt regarding King.” Griscavage Decl. ¶ 7. The Griscavage Declaration then states that “[t]he DOJ OIG investigation was initially opened on August 20, 2009 under OIG case number 2009-4792.” Id. ¶ 8. First, contrary to Defendants’ argument in their briefing, the Griscavage Declaration does not state that Wyatt’s 2008 complaint was only reviewed as part of the OIG investigation thus foreclosing the possibility that it was the impetus of the investigation. Indeed, the sequence of events proffered in the Declaration could be read to suggest that the OIG investigation was opened only after OIG reviewed Wyatt’s 2008 complaint. Second, important information in the Declaration appears to be incorrect. According to the documents in the Report of Investigation, the investigation" }, { "docid": "17460325", "title": "", "text": "activity,” citing only her 2007 EEOC case. ECF No. 137 Ex. 9. at p. 8 of 140, Q# 4. After receiving a right to sue letter from the EEOC for the second (February 28, 2010) charge, Ms. Kendall filed suit in this Court on September 14, 2010, alleging that the USPS terminated her in unlawful retaliation for her prior “protected activity,” in violation of Title VII, 42 U.S.C. § 2000e-2(m), and the Rehabilitation Act, 29 U.S.C. 701 et seq. Am. Compl. ¶¶ 3, 8, 10, ECF No. 12. Plaintiff asserts as the protected activity for which she was terminated both the 2007 EEOC Case (“2007 EEOC Case”) and her October 2009 activity surrounding the second EEOC Charge (“2009 EEOC Case”). See Pl.’s Counter-Stmt. Mat. Facts ¶ 18, ECF No. 138. Defendant now moves for summary judgment, asserting among other things that Ms. Kendall’s charges must fail as a matter of law because she did not engage in statutorily “protected activity.” Plaintiff, in response, concedes that she does not have a valid Title VII retaliation claim because her claims did not originate with alleged discrimination on the basis of race, color, gender, national origin, or religion. But she asserts that her Rehabilitation Act retaliation claim is still valid, because “the initial discrimination arose out of her physical and mental disability, which is a protected class under the Rehabilitation Act” as evidenced by “Defendant’s extensive discovery of Plaintiffs physical and mental health records, and the extensive testimony regarding Plaintiffs various leaves of absence and whether she supplied the proper documentation regarding those requested leaves.” Pl.’s Reply Def.’s Suppl. Br. Supp. Mot. S.J. at 3, ECF No. 154. Therefore, all that remains in this case is a single count alleging retaliatory termination in violation of the Rehabilitation Act. The question presented to the Court is whether Ms. Kendall engaged in the requisite “protected activity” under the Rehabilitation Act necessary to assert a claim of retaliation. II. DISCUSSION A. Standard of Review Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant" }, { "docid": "11244284", "title": "", "text": "interference in the investigative process.” (Def. Mem. at 15 (quoting Keeley v. Small, 391 F.Supp.2d 30, 45 (D.D.C.2005)).) Rather, plaintiffs “sole remedy for complaints about the administrative investigative process is to bring a de novo action in federal court” against the party allegedly engaged in the underlying discrimination, and to seek discovery relating to his claims in court. (Id. (quoting Keeley, 391 F.Supp.2d at 45).) Plaintiff does not dispute defendant’s arguments, nor does his opposition brief contain any argument with respect to the settlement, its alleged breach, or his opportunity to take discovery in the administrative proceedings. It is therefore proper to treat defendant’s argument as conceded, although, as just described, it succeeds on its merits in any event. See Lytes, 572 F.3d at 943. (vii)Pre-Disciplinary Interview on January 18, 2006 In its motion for summary judgment, defendant argues that plaintiffs pre-disciplinary interview was neither an adverse action nor was it discriminatory/retaliatory. (Def. Mem. at 16, 25-29, 41-44.) The Court agrees. See, e.g., Franklin, 600 F.Supp.2d at 68-69 (holding plaintiffs pre-disciplinary interview for poor attendance not an adverse action) (citing McDaniel v. Potter, Nos. 06-CV-0803 & 06-CV-1371, 2007 WL 3165807, *6, *8-9 (N.D.Ohio Oct. 26, 2007) (same)). As set forth above, the Court finds that defendant’s argument regarding the predisciplinary interview succeeds on its merits. In addition, plaintiff failed to respond to defendant’s arguments. His opposition to the motion for summary judgment contains no argument or record evidence that the pre-disciplinary interview constitutes adverse action. Accordingly, the Court may also treat claim seven as conceded. See Lytes, 572 F.3d at 943. (viii)Removal from Postal Service The Court now turns to plaintiffs most significant claim: his removal from the Postal Service in 2006. At the outset, the Court notes that the Agency’s actions toward the plaintiff during the four years from when he was initially sent home, in 2002, to his ultimate removal in 2006, were far from unassailable. Indeed, the Postal Service took positions during that time which, in this Court’s view, were both confusing and contradictory. However, the relevant inquiry is not whether the Postal Service treated plaintiff justly," }, { "docid": "18180552", "title": "", "text": "18-3]. Plaintiff alleges that in August 2010, David Smith (“Smith”) and Kevin Banks (“Banks”) — both electrical division supervisors — ordered plaintiff and other night shift electricians to work in areas and with materials containing asbestos. Compl. ¶ 10. Although plaintiff and the other electricians objected to handling asbestos without proper safety equipment, they were warned by their supervisors that “there would be consequences for failing to do as instructed.” Compl. ¶ 10. At the request of plaintiff s work partner, Richard Hutson, AOC’s Inspector General (“OIG”) launched an investigation into whether electricians were instructed to disturb asbestos-containing materials without proper safety precautions. Pl.’s Opp’n to Summ. J. (“Pl.’s Opp’n) at 3 [Dkt. # 23]. The OIG interviewed plaintiff on April 22, 2011. Compl. ¶ 13. Plaintiffs employment was terminated in June 2011. Compl. ¶ 15; Def.’s Stmt. Material Facts Not In Dispute (“Def.’s SMF”) ¶ 10 [Dkt. # 18-19]. Believing that he was terminated because of his OIG testimony, plaintiff sought counseling with the Office of Compliance (“OCC”) and was reinstated to his temporary position in November 2011. Def.’s SMF ¶¶ 10-11. Meanwhile, between 2010 and 2011, in the wake of budgetary restrictions, HOB sought to re-structure its night shift electrician staff by creating three permanent electrician positions. See Def.’s Mot. Ex. 14 (“Riley Deck”) ¶¶8 [Dkt. #18-16]; Def.’s Mot. at 28. On November 29, 2011, HOB published a Vacancy Announcement seeking to fill these three vacancies from a pool of AOC employees. See Def.’s Mot. Ex. 8a (“Vacancy Announcement”) [Dkt. # 18-8]. The Vacancy Announcement stated that applicants would “be evaluated on their ability to perform the duties of the position rather than [on the] length of [their] experience.” Vacancy Announcement at 002. Human Resources identified ten AOC employees as potential candidates for the position. See Def.’s Mot. Ex. 16 at 4 [Dkt. # 18-18]. Four of these candidates received interviews: (1) Robert Gallagher (“Gallagher”), who is Caucasian, (2) Omega Armah (“Armah”), who is African American, (3) Terrence Jones (“Jones”), who is African American, and (4) plaintiff Paulk, who is Caucasian. Def.’s SMF ¶ 17. A panel consisting" } ]

[ { "docid": "22390492", "title": "", "text": "those instances where the act complained of, considered apart from the official authority alleged as its justification, and as the personal act of the individual defendant, constituted a violation of right for which the plaintiff was entitled to a remedy at law or in equity against the wrongdoer in his individual character. The present case stands upon a footing altogether different. Admitting all that is claimed on the part of the complainants as to the breach of its., contract on the part of the State of Virginia by the acts of its General Assembly referred to in the bill of complaint, there is nevertheless no foundation in law for the relief asked. For a breach of its contract by the State, it is conceded there is no remedy by suit against the State itself. This results from the 11th Amendment to the Constitution, which secures to the State immunity from suit by individual citizens of other States or aliens. This immunity includes not only direct actions for damages for the breach of the contract brought against the State by name, but all other actions and suits against it, whether at law or in equity. A bill in equity for the specific performance of the contract against the State by name, it is admitted could not be brought. In Hagood v. Southern, 117 U. S. 52, it was decided that in such a bill, where the State was not nominally a party to the record, brought against its officers and agents, having no personal interest in the subject matter of the suit, and defending only as representing the State, where “the things required by the decree to be done and performed by them are the very things which, when done and performed, constitute a performance of the alleged' contract by the State,” the court was without jurisdiction, because it was a suit against a State. The converse of that proposition must be equally true, because it is contained in it; that is, a bill, the object of which is by injunction, indirectly, to compel the specific performance of the contract, by" } ]

[ { "docid": "11470163", "title": "", "text": "threatened to do, for the recovery of the penalties aforesaid-. The learned District Judge sustained the demurrer to the bill and dismissed the case upon the ground that the action is, in effect, a suit against the State of Arkansas, and for that reason prohibited by the Eleventh ■Amendment to the Federal Constitution. The sole question presented upon this record is as to the correctness of that ruling. Since the decision in the Circuit Court this court has decided the case of Ex parte Young, 209 U. S. 123, 155. In that case the previous cases in this court concerning the application of the Eleventh Amendment of the Constitution were fully considered, and. it was then said by Mr. Justice Peck-ham, speaking for the court: “The various authorities we have referred to furnish ample justification for tie assertion that individuals, who, as officers of the State, are clothed with some duty in regard tp the enforcement of the laws of the State, and who threaten and are about to commence proceedings, either of a civil or a criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action.” This doctrine is precisely applicable to the case at bar. The statute specifically charges the prosecuting attorneys with the duty of bringing actions to recover the penalties. It is averred in the bill,- and admitted by the demurrer, that they threatened and were 'about to commence proceedings for that purpose. The unconstitutionality of the act ¿s averred, and relief is sought against its enforcement. As this case is ruled, upon the question of jurisdiction, by the case of Ex parte Young, it is unnecessary to consider the question further. Upon the. authority of that case the decree of the Circuit Court dismissing the bill for want of jurisdiction is reversed, and the cause remanded for further proceedings. Reversed." }, { "docid": "5355309", "title": "", "text": "the point previously made in oral argument that, inasmuch as the New Hampshire Supreme Court has full power to review the action of the commission, this court is without jurisdiction until the Supreme Court of the state has decided adversely the plaintiffs’ contention. We cannot indorse the position taken by counsel for the commission. In the case of Smyth v. Ames, 169 U. S. 446, 18 S. Ct. 418, 422, 42 L. Ed. 819, it is held that: “The adequacy or inadequacy of a remedy at law for the protection of the rights of one entitled upon any ground to invoke the powers of a federal court is not to be conclusively determined by the statutes of the particular state in which suit may be brought. One who is entitled to suo in the federal circuit court may invoke its jurisdiction in equity whenever the established principles and rules of equity permit such a suit in that court; and he cannot be deprived of that right by reason of his being allowed to sue at law in a state court on the same cause of action.” And in the ease of Western Union Telegraph Co. v. Andrews, 216 U. S. 165, 30 S. Ct. 286, 54 L. Ed. 430, it is held that: “Individuals, who, - as officers of the State, are clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an uncon stitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such aetion; and such an action is not prohibited by the Eleventh Amendment of the Constitution of the United States.” In the case of Re Debs, 158 U. S. 565, 593, 15 S. Ct. 900, 909, 39 L. Ed. 1092, Mr. Justice Brewer says: “It is objected that it is outside of the jurisdiction of a court of equity to enjoin the commission of crimes. This; as a general proposition, is unquestioned. A chancellor" }, { "docid": "3726884", "title": "", "text": "a state agency. He stands on the proposition, however, with which we agree, that sovereign immunity does not extend to state or federal officials who act beyond their authority or in violation of the United States Constitution. The foundation case is Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), where the Supreme Court held that a suit against the Attorney General of Minnesota to enjoin the enforcement of an unconstitutional state statute did not violate the prohibition of the Eleventh Amendment. In rejecting the claim of state immunity the Court announced this basic principle: “The act to be enforced is alleged to be unconstitutional, and if it be so, the use of the name of the state to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of, and one which does not affect the state in its sovereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting, by the use of the name of the state, to enforce a legislative enactment which is void because unconstitutional. If the act which the state attorney general seeks to enforce be a violation of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States. See In re Ayers, supra, 123 U.S. 443, page 507, 8 S.Ct. 164, 31 L.Ed. 216.” 209 U.S. at 159-160, 28 S.Ct. 454. Kenneth Culp Davis, who discusses the rationale of the Young decision in his administrative law treatise, states: “ * * * [The Court] was deliberately indulging in fiction in order to find a way around sovereign immunity. It knew that the injunction against the attorney general was in truth a means of preventing the state from enforcing the" }, { "docid": "22753935", "title": "", "text": "Stat. 470, which gave lower federal courts general federal-question jurisdiction, see 28 U. S. C. § 1331. These two statutes, together, after 1908, with the decision in Ex parte Young, established the modern framework for federal protection of constitutional rights from state interference. That framework has been strengthened and expanded by subsequent acts of Congress and subsequent decisions of this Court. Ex parte Young involved a state regulatory statute with penal sanctions. At the suit of railroad stockholders, a federal circuit court temporarily enjoined the railroad from complying with the statute, and also temporarily enjoined Young, the state Attorney General, from instituting any proceedings to enforce the statute. Young nevertheless brought an enforcement proceeding in a state court, and was thereupon held in contempt by the circuit court. He brought habeas corpus in this Court, contending that the circuit court lacked jurisdiction to hold him in contempt. This Court held, first, that the original suit was properly within the general federal-question jurisdiction of the circuit court; second, that “individuals, who, as officers of the State, are clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action,” 209 U. S., at 155-156; and, third, that a federal court of equity has power in appropriate circumstances to enjoin a future state criminal prosecution: “When [the state] proceeding is brought to enforce an alleged unconstitutional statute, which is the subject matter of inquiry in a suit already pending in a Federal court, the latter court having first obtained jurisdiction over the subject matter, has the right, in both civil and criminal cases, to hold and maintain such jurisdiction, to the exclusion of all other courts, until its duty is fully performed.” 209 U. S., at 161-162. The decision in Ex parte Young provoked a reaction not unlike that which greeted Chisholm v. Georgia. Opposition focused principally on the" }, { "docid": "22671072", "title": "", "text": "Governor of Georgia as governor, and the demand was made upon him, not personally, but officially (for moneys in the treasury of the State and for slaves in possession of the state government), the State might be considered as the party on the record (page 123), and therefore the suit could not be maintained. Davis v. Gray, 16 Wall. 203, 220, reiterates the rule of Osborn v. United States Bank, so far as concerns the right to enjoin a state officer from executing a state law in conflict with the Constitution or a statute of the United States, when such execution will violate the rights of the complainant. In Virginia Coupon Cases, 114 U. S. 270, 296 (Poindexter v. Greenhow), it was adjudged that a suit against a tax collector who had refused coupons in payment of taxes, and, undér color of a void law, was about to seize and sell the property of a taxpayer for non-payment of his taxes, was a suit against him personally as a wrongdoer and not against the Staté. Hagood v. Southern, 117 U. S. 52, 67, decided that the bill was in substance a bill for the specific performance of a contract between the complainants and the State of South Carolina, and, although the State was not in name made a party defendant, yet being the actual party to the alleged contract the performance of which was sought and the only party by whom it could be performed, the State was, in, effect, a party to the suit, and it could not be maintained for that reason. The things required to be done by the actual defendants were the very things which when done would constitute a performance of the alleged contract by the State. The cases upon the subject were reviewed, and it was held, In re Ayers, 123 U. S. 443, that a bill in equity brought against officers of a State, who, as individuals, have no personal interest in the subject-matter of the suit, and defend only as representing the State, where the relief prayed for, if done, would constitute" }, { "docid": "22776748", "title": "", "text": "others argued with them, proceeds upon the theory that the Board of Valuation and Assessment treated all taxpayers alike over whom they had jurisdiction; hence, it is fair to assume that plaintiffs’ franchises were assessed on the same basis of valuation applied by the Board to other property generally that came within the range of their official duty. (1) It is convenient to state at this point what, indeed, is not controverted, that, if the suits be otherwise maintainable, the last-mentioned averments of the bills show sufficient special grounds for invoking the equity jurisdiction, under the rule established by repeated decisions of this court. Dows v. City of Chicago, 11 Wall. 108, 110, 112; Hannewinkle v. Georgetown, 15 Wall. 547; Union Pacific Railway v. Cheyenne, 113 U. S. 516, 525, 526; Ohio Tax Cases, 232 U. S. 576, 587. (2) A fundamental contention of appellants is that the present actions, brought to restrain them in respect of the performance of duties they are exercising under the authority of the State of Kentucky, are in effect suits against the State. Questions of this sort havé arisen many times in this court, but the matter was set at rest in Ex parte Young, 209 U. S. 123, 150, 155, where it was held that a suit to restrain a state officer from executing an unconstitutional statute, in violation of plaintiff’s rights and to his irreparable damage, is not a suit against the State, and that “individuals who, as officers of the State, are clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action.” In repeated decisions since Ex parte Young, that case has been recognized as setting these questions at rest. Western Union Telegraph Co. v. Andrews, 216 U. S. 165, 166; Herndon v. Chicago, Rock Island & Pac. Ry. Co., 218 U. S. 135, 155; Philadelphia" }, { "docid": "21501699", "title": "", "text": "under the Constitution and law's of the United States (Holt v. Indiana Mfg. Co., 176 U. S. 70, 20 S. Ct. 272, 44 L. Ed. 374) and that as such it is not a suit against the state, but against persons in their individual capacities, to prevent them from enforcing statutes in themselves unconstitutional, or unconstitutional as attempted to he enforced and applied. That in such a suit, when it is found, that “an individual, acting- under the assumed authority of a state, as one of its officers, and under color of - its laws, comes into conflict with the superior authority of a valid law of the United States, he is stripped of his representative character, and subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States.” Ex parte Ayers, 123 U. S. 507, 8 S. Ct. 164, 184, 31 L. Ed. 216; Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, 14 S. Ct. 1047, 38 L. Ed. 1014; Ex parte Young, 209 U. S. 123, 28 S. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764; Yick Wo v. Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 30 L. Ed. 220; Truax v. Raich, 239 U. S. 33, 36 S. Ct. 7, 60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283; Greene v. Louisville & Int. R. R., 244 U. S. 507, 37 S. Ct. 673, 61 L. Ed. 1280, Ann. Cas. 1917E, 88; MacMillan v. Comm. (D. C.) 51 F.(2d) 400; McLeaish v. Binford (D. C.) 52 F.(2d) 151. In this suit plaintiffs invoke the exercise of the judicial power of the United States which, vested by the Constitution in its courts, extends to all cases of law and equity arising thereunder. La Abra Silver Mining Co. v. U. S., 175 U. S. 423, 20 S. Ct. 168, 44 L. Ed. 223; Kansas v. Colorado, 206 U. S. 83," }, { "docid": "16010146", "title": "", "text": "threatened by the defendants. Injunction was, in our opinion, not only the appropriate and proper, but the only legal, remedy the government had. The principle governing the ease is, we think, clearly illustrated by the Supreme Court of the United States in the ease of Missouri v. Holland, 252 U. S. 416, 40 S. Ct. 382, 64 L. Ed. 641,11 A. L. R. 984. That was a bill in equity brought by the state of Missouri to prevent a game warden of the United States from attempting to enforce the Migratory Bird Treaty Act of July 3, 1918 (40 Stat. 755; Comp. St. §§ 8837a-8837m), and the regulations made by the Secretary of Agriculture in pursuánce thereof, and the court held, among other things, that the protection of a quasi sovereign right of the state to regulate the taking of game is a sufficient jurisdictional basis, apart from any pecuniary interest it might have, for a bill by a state to enjoin enforcement of federal regulations over the subject alleged to be unconstitutional. The same thing is, of course, true respecting the right of the sovereign government of the United States to maintain a suit in equity against the state for a like purpose. Regarding the claim on the part of the defendants that the complainant cannot maintain the suit against them as officers of the state, it is, we think, enough to cite the decision of the Supreme Court in the ease of Ex parte Young, 209 U. S. 123, 28 S. Ct. 441, 52 L. Ed. 714,13 L. R. A. (N. S.) 932,14 Ann. Cas. 764, where, among other things, it was held that the attempt of a state officer to enforce an unconstitutional statute is a proceeding without authority of, and does not affect, the state in its sovereign or governmental capacity, and is an illegal act, and that the officer is stripped of his official character and is subjected in his person to the consequences of his individual conduct, and further that the state has no power to impart to its officer immunity from responsibility to" }, { "docid": "22671073", "title": "", "text": "Hagood v. Southern, 117 U. S. 52, 67, decided that the bill was in substance a bill for the specific performance of a contract between the complainants and the State of South Carolina, and, although the State was not in name made a party defendant, yet being the actual party to the alleged contract the performance of which was sought and the only party by whom it could be performed, the State was, in, effect, a party to the suit, and it could not be maintained for that reason. The things required to be done by the actual defendants were the very things which when done would constitute a performance of the alleged contract by the State. The cases upon the subject were reviewed, and it was held, In re Ayers, 123 U. S. 443, that a bill in equity brought against officers of a State, who, as individuals, have no personal interest in the subject-matter of the suit, and defend only as representing the State, where the relief prayed for, if done, would constitute a .performance by the State of the alleged contract of the State, was a suit against the State (page 504), following in this respect Hagood v. Southern, supra. A suit of such a nature was simply an attempt to make the State itself, through its officers, perform its alleged contract, by directing those officers to do acts which constituted such performance. The State alone had any interest in the question, and a decree in favor of plaintiff would affect the treasury of the State. On the other hand, United States v. Lee, 106 U. S. 196, determined that an individual in possession of real estate under the. Government of the United States, which claimed to be its owner, was, nevertheless, properly sued by the plaintiff, as owner, to, recover possession,-and such suit was not one against the United States, although the individual in possession justified such possession under its authority. See also Tindal v. Wesley, 167 U. S. 204, to the same effect. In Pennoyer v. McConnaughy, 140 U. S. 1, 9, a suit against" }, { "docid": "11533367", "title": "", "text": "the enforcement of J1 the tax So already assessed for state purposes; second, it is sought to v restrain' the certification by the defendant of the valuations apportioned by the board to the several counties, cities, and towns wherein this ■ franchise is exercised for assessment for local purposes. Does juris- ' diction exist for either purpose? If the state itself can be brought '■'into'court and compelled to- defend the assessment, the trouble in the - way of granting relief as to the completed state assessment is out of ■' the way. But the eleventh amendment provides that the judicial power ' of the United States shall not be construed to extend to any suit in law or equity against one of the United States by citizens of another s^ate. Justice Matthews, speaking for the court, in In re Ayers, 123 U. S. 443, 505, 8 Sup. Ct. 164, 31 L. Ed. 216, in respect of this amend'ment, said: • ’ . “To secure the manifest purposes of the constitutional exemption guarantied •by the eleventh amendment requires that it should be interpreted not literally, ■ and too narrowly, but fairly, and with such breadth and largeness as effec- ; .tually to accomplish the substance of its purpose. In this spirit it must be ; held to cover not only suits brought against a state by name, but those also j against its officers, agents, and representatives, where the state, though not ; named as such, is nevertheless the only real party, against which alone in fact ’■the relief is asked, and against which the judgment or decree effectively op-j, crates. -But this is not intended in any way to impinge upon the principle ..which justifies suits against individual defendants, who, under color of the . authority of unconstitutional legislation by the state, are guilty of personal d trespasses and wrongs, not to forbid suits against officers in their official ca- ■' pacity either to arrest or direct their official action by injunction or manda- , -'mu,s,; where such suits are authorized by law', and the act to be done or" }, { "docid": "22088130", "title": "", "text": "“Barney v. City of New York, 193 U. S. 430, holds that where the act complained of was forbidden by the state legislature, it could not be said to be the act of the. State. Such is not the case here.” The reassessment complained of was held to be repugnant to the Fourteenth Amendment. Finally the subject was elaborately considered in Ex parte Young, 209 U. S. 123. Without attempting to fully state the case it suffices, to say that although the proceeding was one in habeas corpus, the controversy in its ultimate aspect concerned the power of. a Federal court to prevent the enforcement of railroad rates fixed under state legislative authority which were confiscatory. In the course of an opinion reviewing the whole field it was said (p. 155): “The various authorities we have referred to furnish ample justification for the assertion that individuáis,, who, as officers of the State, are clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional .act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action.” . Although every contention pressed and authority now relied upon in favor of affirmance is disposed of by the general principles which we have previously stated, before concluding we specially advert to some of the contentions urged to the contrary. 1. Much reliance is placed upon the decisions in Barney v. New York, 193 U. S. 430, and Memphis v. Telephone Co., 218 U. S. 624. The latter we at once put out of view with the statement that on its face the question involved was one of pleading and in no sense of substantive Federal power. As to the other — the Barney Case — it might suffice to say, as we have already pointed out, it was considered in the Raymond Case and if it conflicted with the doctrine in that case and the doctrine of the subsequent and leading" }, { "docid": "22776749", "title": "", "text": "suits against the State. Questions of this sort havé arisen many times in this court, but the matter was set at rest in Ex parte Young, 209 U. S. 123, 150, 155, where it was held that a suit to restrain a state officer from executing an unconstitutional statute, in violation of plaintiff’s rights and to his irreparable damage, is not a suit against the State, and that “individuals who, as officers of the State, are clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action.” In repeated decisions since Ex parte Young, that case has been recognized as setting these questions at rest. Western Union Telegraph Co. v. Andrews, 216 U. S. 165, 166; Herndon v. Chicago, Rock Island & Pac. Ry. Co., 218 U. S. 135, 155; Philadelphia Co. v. Stimson, 223 U. S. 605, 621; Home Telephone & Telegraph Co. v. Los Angeles, 227 U. S. 278, 293; Truax v. Raich, 239 U. S. 33, 37. And see Hopkins v. Clemson Agricultural College, 221 U. S. 636, 642-644. The principle is not confined to the maintenance of suits for restraining the enforcement of statutes which as enacted by the state legislature are in themselves unconstitutional. Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, 390, was a case not of an unconstitutional statute, but of confiscatory, and therefore unconstitutional, action taken by a state commission under a constitutional statute. The court, by Mr. Justice Brewer, said: “Neither will the constitutionality of the statute, if that- be conceded, avail to oust the Federal court of jurisdiction. A valid law may be wrongfully administered by officers of the State, and so as to make such administration an illegal burden and exaction upon the individual. A tax law, as it leaves the legislative hands, may not be obnoxious to any challenge, and yet" }, { "docid": "11533370", "title": "", "text": "18 Sup. Ct. 418, 42 L. Ed. 819; Scott v. Donald, 165 U. S. 107, 17 Sup. Cf. 262, 41 L. Ed. 648; Allen v. B. & O. Rd., 114 U. S. 311, 5 Sup. Ct. 925, 29 L. Ed. 200; United States v. Lee, 106 U. S. 196, 1 Sup. Ct. 240, 27 L. Ed. 171. But the ground upon which all such cases rest is that the officers sued were illegally about to do some act or take some step, under color of a law of the state, in violation of the rights of the complainant, and for which the defendants would be personally liable. In re Ayers, 123 U. S. 493, 501, 8 Sup. Ct. 164, 31 L. Ed. 216; Fitts v. McGhee, 172 U. S. 516, 529, 19 Sup. Ct. 269, 43 L. Ed. 535. t....'. In Fitts v. McGhee, cited above, the rule for jurisdiction in such cases is admirably stated by Justice Harlan, who, after referring to cases cited as authorizing suits against state officials, said: “Upon examination it will be found that the defendants in each of those cases were officers of the state, specially charged with the execution of a state enactment alleged to be unconstitutional, but under tbe authority of which it was averred they were committing, or were about to commit, some specific wrong or trespass to the injury of the plaintiff’s rights. There is a wide difference between a suit against individuals holding official positions under a state, to prevent them, under the sanction of an unconstitutional statute, from committing by some positive act a wrong or trespass, and a suit against officers of a state merely to test the constitutionality of a state statute, in the enforcement of which those officers will act only by formal judicial proceedings in the courts of the state. In the present case, as -we have said, neither of the state officers named held any special relation to the particular statute alleged to be unconstitutional. They were not expressly directed to see to its enforcement. If, because they were law officers of the" }, { "docid": "22753936", "title": "", "text": "are clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action,” 209 U. S., at 155-156; and, third, that a federal court of equity has power in appropriate circumstances to enjoin a future state criminal prosecution: “When [the state] proceeding is brought to enforce an alleged unconstitutional statute, which is the subject matter of inquiry in a suit already pending in a Federal court, the latter court having first obtained jurisdiction over the subject matter, has the right, in both civil and criminal cases, to hold and maintain such jurisdiction, to the exclusion of all other courts, until its duty is fully performed.” 209 U. S., at 161-162. The decision in Ex parte Young provoked a reaction not unlike that which greeted Chisholm v. Georgia. Opposition focused principally on the power of lower federal courts, and of single judges of such courts, to issue preliminary injunctions, often ex parte, against the enforcement of state statutes, generally regulatory statutes carrying penalties. See generally Kennedy v. Mendoza-Martinez, 372 U. S. 144, 154 (1963); H. Hart & H. Wechsler, The Federal Courts and the Federal System 848-849 (1953); Hutcheson, A Case for Three Judges, 47 Harv. L. Rev. 795, 803-810 (1934); Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1, 5-7 (1964). The opinion in Ex parte Young anticipated the problem. The Court noted the objection “that the necessary result of upholding this suit in the Circuit Court will be to draw to the lower Federal courts a great flood of litigation of this character, where one Federal judge would have it in his power to enjoin proceedings by state officials to enforce the legislative acts of the State, either by criminal or civil actions.” 209 U. S., at 166. The same year the case was decided Congress considered a measure to disable" }, { "docid": "18208731", "title": "", "text": "Ayers, supra, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216. But the general doctrine of Osborn v. Bank, that the circuit courts of the United States will restrain a state officer from executing an unconstitutional statute of the state, when to execute it would violate the rights and privileges of the complainant which had been guaranteed by the constitution, and would work irreparable damage and injury to him has never been departed from.” (Emphasis added). 11 S.Ct. 701, 702. The fiction of Ex Parte Young followed. In that case the court after reviewing the jurisprudence to that date, including Osborn and Pennoyer and others, concluded that an officer of a state can be enjoined from enforcing an unconstitutional act under color of state law because “the act to be enforced is alleged to be unconstitutional; and if it be so, the use of the name of the state to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of and one which does not affect, the state in its sovereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting, by the use of the name of the state, to enforce a legislative enactment which is void because unconstitutional. If the act which the state attorney general seeks to enforce be a violation of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.” 209 U.S. at 159, 160, 28 S.Ct. at 454. Thus Ex Parte Young denies state officials the use of the shield of the Eleventh Amendment, even though the practical effect of such a denial results in an injunction against the state itself. This concept of stripping a state official of his robes of immunity has been followed by the Supreme Court, in Georgia R. R. and Banking Company v. Redwine, 342 U.S. 299, 72 S.Ct." }, { "docid": "8091161", "title": "", "text": "prevent its distribution to the Counties who are beneficiaries of the fund. This suit is aimed directly at the moneys of the State now in its treasury. It is therefore in substantial effect a suit against the State prohibited by the Eleventh Amendment U.S.C.A.Const. To avoid this the plaintiff has sought to pattern the procedure on Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 13 L.R.A.,N.S., 932, 14 Ann. Cas. 764, and Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, L.R.A.1916D, 545, Ann.Cas.1917B, 283. But on comparison this case bears faint resemblance to those. The principle of Ex parte Young as stated for the Court by Mr. Justice Peckham at pages 155 and 157, 28 S.Ct. at page 452, is: “The various authorities we have re- , ferred to furnish ample justification for the assertion that individuals, who, as officers of the state, are clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action. * * * “In making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party.” See, also, Fitts v. McGhee, 172 U.S. 516, 530, 19 S.Ct. 269, 43 L.Ed. 535; 43 A.L.R. 408. Therefore to succeed against the defendants here the plaintiff must show not only that thé law is unconstitutional but that the defendants have power and authority to enforce it, and are doing so or have threatened to do so to his prejudice. Typical of the doctrine of Ex parte Young is a suit to enjoin the enforcement of" }, { "docid": "23126633", "title": "", "text": "offends the constitution of Texas because a local law passed without the required notice; and that it is bad under both federal and state -constitutions because (1) it delegates to the Board of Regents power to determine what property is reasonably necessary for the purposes mentioned and forbids inquiry concerning this by the court, (2) it forbids inquiry into the .damages to the remainder of a tract where a part only is taken, and (3) it permits the State to acquire fee simple title to property which thereafter may be sold. It is further alleged that appellants’ property is so situated that to take a part would necessarily cause serious damage to the remainder. A special court assembled as provided by § 266, Judicial Code, denied application for preliminary injunction without opinion and allowed this direct appeal. It is now settled doctrine “that individuals, who, as officers of the State, are clothed with some duty in regard to the enforcement of the laws of the State, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action.” Ex parte Young, 209 U. S. 123, 155, 156; Western Union Telegraph Co. v. Andrews, 216 U. S. 165, 166, 167; Home Telephone & Telegraph Co. v. Los Angeles, 227 U. S. 278, 293; Truax v. Raich, 239 U. S. 33, 37; Greene v. Louisville & Interurban R. R. Co., 244 U. S. 499, 506. But no such injunction “ought to be granted unless in a case reasonably free from doubt,” and when necessary to prevent great and irreparable injury. Ex parte Young, supra, 166. The jurisdiction should be exercised only where intervention is essential in order effectually to protect property rights against injuries otherwise irremediable. When considered in connection with established rules of law relating to the power of eminent domain, complainants ’ allegation of threatened “irreparable loss and damage” appears fanciful. The detailed circumstances negative such view and rather tend to support" }, { "docid": "3726885", "title": "", "text": "the state, to enforce a legislative enactment which is void because unconstitutional. If the act which the state attorney general seeks to enforce be a violation of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States. See In re Ayers, supra, 123 U.S. 443, page 507, 8 S.Ct. 164, 31 L.Ed. 216.” 209 U.S. at 159-160, 28 S.Ct. 454. Kenneth Culp Davis, who discusses the rationale of the Young decision in his administrative law treatise, states: “ * * * [The Court] was deliberately indulging in fiction in order to find a way around sovereign immunity. It knew that the injunction against the attorney general was in truth a means of preventing the state from enforcing the statute. The reality is all too obvious that the suit was in practical effect a suit against the state.” 3 Davis, Administrative Law Treatise § 27.03 at 553. As Davis recognizes, however, the principle underlying the Young case, even though founded upon fiction, has become firmly implanted in the law. It has been applied not only to enjoin unconstitutional state legislation, as in Young, but also to Challenge unconstitutional activities by state officials. In Georgia Railroad & Banking Co. v. Redwine, State Revenue Commissioner, 342 U.S. 299, 72 S.Ct. 321, 96 L.Ed. 335 (1952), an action to enjoin the collection of taxes which allegedly impaired the obligation of contract between plaintiff and the State of Georgia in violation of the federal constitution, a unanimous Court stated: “This Court has long held that a suit to restrain unconstitutional action threatened by an individual who is a state officer is not a suit against the State. These decisions were reexamined and reaffirmed in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 1908, and" }, { "docid": "21501698", "title": "", "text": "not only the Constitution of the state, but of the United States, to the extent of depriving their courts of jurisdiction to inquire into and redress grievances, defendants would point to enabling constitutional provisions, state or national, or at least clear and convincing authority supporting their claim. We have examined the constitutional provisions which they rely on. We have examined every authority cited by them. We have found none, we conclude that none exists which, as against the claim of deprivation of property, supports defendants’ claim to immunity from judicial inquiry, and none which has even considered, much less declared, that a court of the United States may not, by injunction, prevent the deprivation of property such as is here occurring. Upon the first proposition advanced, that this is a suit against the state, and that as such it may not be maintained, the authorities overwhelm that this is a suit under the first subdivision of section 41, 28 USCA, section 24, subd. 1 of the Judicial Code, to redress the deprivation of property arising under the Constitution and law's of the United States (Holt v. Indiana Mfg. Co., 176 U. S. 70, 20 S. Ct. 272, 44 L. Ed. 374) and that as such it is not a suit against the state, but against persons in their individual capacities, to prevent them from enforcing statutes in themselves unconstitutional, or unconstitutional as attempted to he enforced and applied. That in such a suit, when it is found, that “an individual, acting- under the assumed authority of a state, as one of its officers, and under color of - its laws, comes into conflict with the superior authority of a valid law of the United States, he is stripped of his representative character, and subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States.” Ex parte Ayers, 123 U. S. 507, 8 S. Ct. 164, 184, 31 L. Ed. 216; Reagan v. Farmers’ Loan & Trust Co., 154 U." }, { "docid": "22721101", "title": "", "text": "a suit that would have required a state treasurer to levy taxes to pay interest on a bond. Currie, Sovereign Immunity and Suits Against Government Officers, 1984 S. Ct. Rev. 149, 152. (One recalls the circumstances of Hans itself, see supra, at 117-121.) The Court, however, again applied Osborn in the Virginia Coupon Cases, 114 U. S. 269 (1885) (permitting injunctions, restitution, and damages against state officers who seized property to collect taxes already paid with interest coupons the State had agreed to accept). In re Ayers, 123 U. S. 443, 502 (1887), sought to rationalize the competing strands of doctrine on the ground that an action may be “sustained only in those instances where the act complained of, considered apart from the official authority alleged as its justification, and as the personal act of the individual defendant, constituted a violation of right for which the plaintiff was entitled to a remedy at law or in equity against the wrongdoer in his individual character.” Ex parte Young restored the old simplicity by complementing In re Ayers with the principle that state officers never have authority to violate the Constitution or federal law, so that any illegal action is stripped of state character and rendered an illegal individual act. Suits against these officials are consequently barred by neither the Eleventh Amendment nor Hans immunity. The officer’s action “is simply an illegal act upon the part of a state official in at tempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. . . . The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States.” Ex parte Young, 209 U. S., at 159-160. The decision in Ex parte Young, and the historic doctrine it embodies, thus plays a foundational role in American constitutionalism, and while the doctrine is sometimes called a “fiction,” the long history of its felt necessity shows it to be something much more estimable, as we may see by considering the facts of the case. “Young was really" } ]

[ { "docid": "915766", "title": "", "text": "the action and on such terms as are just.” This court has interpreted Rule 21 to mean, “Parties of course may be dropped in order to achieve the requi site diversity of citizenship if their presence is not essential to a just and meaningful adjudication.” As indicated, the court’s power to dismiss parties is circumscribed insofar as under Rule 19(b) the court cannot proceed without an indispensable party. But it is clear that the unincorporated association was not an indispensable party to the action on the note. The association was a co-maker of the note, and thereby was jointly and severally liable on the instrument along with the other co-makers, Phillips, Alexander and Roth. By the very nature of this joint and several liability, it was not necessary for Jett, as the obligee, to proceed against each and every joint obligor on the note. Conversely, each obligor was not indispensable to an action on the note. Hence the unincorporated association was not such a party under Rule 19(b) without which the court could not have proceeded. It follows from what has been said that the trial judge in his sound discretion was empowered to dismiss Phillips & Associates as a party litigant. And on review, this court will reverse only upon a showing that it was a clear abuse of discretion for the trial court to dismiss Phillips & Associates. Whether the trial judge abused his discretion in dismissing Phillips & Associates depends upon whether in point of law the trial judge was correct in determining that Phillips & Associates’ continued presence in the lawsuit ' destroyed the court’s diversity jurisdiction. In answering this question we first note that for the purposes of diversity jurisdiction, the citizenship of an unincorporated association is the citizenship of the individual members of the association. Hence, in a diversity suit against an unincorporated association, the plaintiff’s citienship must be diverse from the citizenship of each member of the defendant association. In our case Jett was a member of the defendant association and plainly Jett, as the party plaintiff in the suit, was not diverse" } ]

[ { "docid": "22216855", "title": "", "text": "cannot be held that as a matter of law Manville is an indispensable party to the asbestos litigation. Under federal law, joint tortfeasors are not considered indispensable parties. Field v. Volkswagenwerk A.G., 626 F.2d 293, 298 n. 7 (3d Cir.1980); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir.1970); Windert Watch Co., Inc. v. Remex Electronics, Ltd., 468 F.Supp. 1242, 1246 (S.D.N.Y.1979), 7 Wright & Miller, Federal Practice and Procedure § 1623 at 241-42 (1973 & Supp. 1981). Further, a universal finding that Manville is an indispensable party to all the thousands of cases in which it is currently a defendant is not possible on the facts before the court today. This is because the essential inquiry in determining indispensability has been articulated as follows: There are two essential tests of an indispensable party: (1) can relief be afforded the plaintiff without the presence of the other party? (2) can the case be decided on its merits without prejudicing the rights of the other party? Pickett v. Paine, 199 S.E.2d 223 at 230, 230 Ga. 786 (1973). An indispensable party is one who must be joined because his non-joinder is so prejudicial, both to his rights and to those of the parties already joined, that action cannot continue without him. Jones Knitting Corp. v. A.M. Pullen & Co., 50 F.R.D. 311, 314 (S.D.N.Y.1970). Accordingly, the determination of indispensability must be made on a case-by-case basis by the courts across the country where the asbestos litigation is pending. The facts of a particular case may render Manville an indispensable party. For example, if Manville supplied the major portion of asbestos products in a particular location it could be held to be unfair to proceed in Manville’s absence. That the indispensability is best determined on a case-by-case basis is illustrated by the divergent results reached by courts in applying a FRCP Rule 19 analysis. It would be most inappropriate for this court, without detailed knowledge of the specific factual contexts, to issue a sweeping ruling on Manville’s indispensability. This ruling is properly lodged with each individual trial court. This holding should not" }, { "docid": "23181917", "title": "", "text": "based on a finding that Lowell Kramer breached his fiduciary duty to [plaintiff] and was aided by [defendants],” but it concluded that Kramer “has absolutely no interest in the subject matter of the suit” (cancellation of a lease), and the judgment therefore “would have no effect, practical or otherwise, on Lowell Kramer.” Thus, it held he was not a necessary party under Rule 19(a). In Pasco International (London) Ltd. v. Stenograph Corp., 637 F.2d 496, 499-502 (7th Cir.1980), the complaint alleged that a competitor conspired with plaintiff’s employee, Croxford, to induce a breach of contract and that Croxford was “falsely disparaging” plaintiff’s financial condition. The court found, despite the potential “impact of the suit on Croxford’s business reputation,” that Croxford was not an indispensable party because “[a]ny agent will suffer some adverse consequences when his principal is held vicariously liable on account of the agent’s conduct, but this is not a sufficient interest for finding the agent indispensable under Rule 19.” See Milligan v. Anderson, 522 F.2d 1202, 1203-05 (10th Cir.1975) (although the “gist of the complaint was that [the absentee], acting as an agent for [the defendant], made false and fraudulent representations to the three plaintiffs,” the absentee was not indispensable because he “had no personal interest, as such, in the contract” which plaintiffs sought to rescind); Wylain, 74 F.R.D. at 436-37 (“Whenever a judgment is entered against the principal on account of his agent’s conduct, some adverse consequences to the agent may reasonably be expected, but it is clear, as a general matter, that the agent is not a necessary party under Rule 19(a)(2)(i)”); Willis v. Semmes, Bowen & Semmes, 441 F.Supp. 1235, 1245 (E.D.Va.1977) (complaint alleged malpractice by absentee law firm; absentee not indispensable because there was “no distinct subject matter” in which the absentee “has an interest that will be affected by this litigation”). Cases interpreting related Rule 24(a) have reached similar results. See Sierra Club v. United States Army Corps of Engineers, 709 F.2d 175, 176-77 (2d Cir.1983) (intervention denied because firm’s concern that “its professional reputation is under attack” is not an interest relating" }, { "docid": "1434476", "title": "", "text": "entitled to contribution or indemnity, cannot be subjected to double or multiple obligations since his liability is several for the entire amount, and though a verdict against him in a later suit for contribution after a verdict against him in the tort suit may be logically inconsistent, it does not subject him to inconsistent obligations .... To dismiss the action on the ground that the absent person is indispensable ... would be to deny a principle [sic] aspect of several liability. Id. Stenograph can always protect itself from the possibility of inconsistent verdicts by impleading Croxford under Rule 14 as a person “who is or may be liable to [Steno-graph] for all or a part of the plaintiff’s claim.” Fed.R.Civ.P. 14(a). Contrary to defendant’s assertion, this does not use Rule 14 to thwart Rule 19. Rather, the existence of the Rule 14 provisions demonstrates that parties such as Croxford who may be impleaded under Rule 14 are not indispensable parties within Rule 19(b). If persons subject to rights of indemnity or contribution were always indispensable parties, there would not be a need for the impleader provisions of Rule 14. See Willis v. Semmes, Bowen & Semmes, 441 F.Supp. 1235, 1246 (E.D.Va.1972); 3A Moore’s Federal Practice ¶ 19.07-l[2.-2], at 19-145 (2d ed. 1979). The second factor under Rule 19(b) provides independent support for this conclusion. This factor requires that the district court evaluate the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided. . . . Fed.R.Civ.P. 19(b). The Advisory Committee’s Note which was appended when Rule 19 was amended in 1966 indicates that the phrase “other measures” includes measures open to the defendant to avoid any prejudice. 39 F.R.D. 88, 92 (1966). The opportunity of the defendants to implead Croxford under Rule 14 avoids any potential for prejudice to Stenograph from the possibility of inconsistent judgments. Stenograph also complains, and the district court stressed, that Croxford may be unavailable as a witness in this action if not made a party. Certainly Croxford’s activities are the" }, { "docid": "8020256", "title": "", "text": "be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action. (b) Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a)(l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. . See, Prescription Plan Service Corp. v. Franco, 552 F.2d 493, 498 (2d Cir. 1977); Wolgin v. Atlas United Financial Corp., 397 F.Supp. 1003, 1012-13 (E.D.Pa.1975) aff'd, 530 F.2d 966 (3d Cir. 1976); Jett v. Phillips & Assoc., 439 F.2d 987, 990 (10th Cir. 1971): reaffirming rule that joint and several obligors are not indispensable parties. See generally, 3A Moore’s Federal Practice ¶ 19.10 at 2341 (2d ed. 1948). See, Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir. 1970); Wylain, Inc. v. Kidde Consumer Durables Corp., 74 F.R.D. 434, 436 (D.Del. 1977); U. S. v. Kates, 419 F.Supp. 846, 856 (E.D.Pa.1976); Dunlop v. Beloit College, 411 F.Supp. 398, 402 (W.D.Wis.1976); Hall v. E. I. DuPont DeNemours, Inc., 345 F.Supp. 353, 383 (E.D.N.Y.1972); Powell v. Kull, 329 F.Supp. 193, 195 (M.D.Pa.1971); Letmate v. Baltimore & Ohio Railroad, 311 F.Supp. 1059, 1063 (D.Md.1970): upholding the rule that joint tort feasors are not indispensable parties. See generally, 3A Moore’s Federal Practice ([ 19.07[1] at 2226 (2d ed. 1948)." }, { "docid": "23619655", "title": "", "text": "entirely independent codefendants, these considerations are not applicable herein. In light of the above authority, this court concludes that section 362 does not apply to claims against non-bankrupt codefendants. IV. There is no impediment to a severance of Unarco and Johns-Manville under Rule 19 of the Federal Rules of Civil Procedure, for they are not indispensable parties. Joint tortfeasors are not considered indispensable parties under federal law. Field v. Volkswagenwerk AG, 626 F.2d 293, 298 n.7 (3d Cir. 1980); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir. 1970); Kindle, supra; Windert Watch Co., Inc. v. Remex Electronics, Ltd., 468 F.Supp. 1242, 1246 (S.D.N.Y.1979); 7 Wright & Miller, Federal Practice and Procedure § 1623 at 241-42 (1973 & Supp. 1981). The court in Royal Truck considered that very point. The co-debtor contended that a stay of the proceedings was necessary because the bankrupt was an indispensable party under Rule 19. The court disagreed. In reaching its conclusion, the court analyzed the four interests suggested by Rule 19(b) that must be examined in each case to determine whether “in equity and good conscience” the court should proceed without a party whose absence from the litigation is desirable. The code-fendant in that case made the very arguments that are being presented to this court to justify extension of the stay to all parties: 1) an interest in avoiding multiple litigation, inconsistent relief, or sole responsibility for a liability defendant shares with another; 2) the interest of the courts and the public in complete, consistent and efficient settlement of disputes. The court rejected the co-debtor’s argument, premising its decision upon the joint and several liability of all codefendants. We are in accord with the result in Royal Truck. Hence, pursuant to Rule 21, FRCP, which provides: Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately, and Rule 42(b), FRCP, which reads: The court, in furtherance of" }, { "docid": "8020251", "title": "", "text": "be no prejudice to Boothe in not being joined. Even if Semmes were held liable as principal for the breach of contract or malpractice of Boothe as its agent such an adjudication could not collaterally estop Boothe, a non-party from contesting liability in any future litigation. Contrary to defendant’s assertion, a determination adverse to Semmes can have no “precedential” value as to Boothe. Plaintiff has given no indication that he seeks to hold defendant liable for any but its own acts, but should plaintiff advance an agency theory of liability such an eventuality would not make Boothe, as agent, an indispensable party. Milligan v. Anderson, 522 F.2d 1202, 1205 (10th Cir. 1975); Wylain, Inc. v. Kidde Consumer Durable Corp., 74 F.R.D. 434, 436 (D.Del.1977); Virginia Electric and Power Co. v. Bunker Ramo Corp., 61 F.R.D. 366, 368 (E.D.Va.1973); Cass v. Sonnenblick-Goldman Corp., 287 F.Supp. 815, 818 (E.D.Pa.1968); Lind v. Canada Dry Corp., 283 F.Supp. 861, 863 (D.Minn.1968). The case of Pauley v. Pauley, 58 F.R.D. 386 (D.Md.1972) cited by defendant is clearly distinguishable since unlike the present case the joinder of the party there in question did not affect diversity of citizenship and deprive the court of subject matter jurisdiction. Should defendant feel apprehensive that it may be held liable as principal for the acts of Boothe, it is free to bring Boothe into the action as third party defendant under Rule 4(f), Fed.R.Civ.P. See, e. g., Debbis v. Hertz Corp., 269 F.Supp. 671, 684 (D.Md.1967). Such a course of action would protect defendant without depriving the Court of subject matter jurisdiction over this diversity action. Lastly, the Court finds wholly unconvincing defendant’s argument that Rule 7(D) of the local rules of court (requiring foreign attorneys to be associated with local counsel in order to appear and conduct cases in the Eastern District of Virginia) effectively makes Boothe, as local counsel, an indispensable party. The purpose of this rule is to give the Court effective control of court business by assuring that attorneys involved in litigation will be available and subject to the Court’s authority. Such a rule cannot alter" }, { "docid": "23619654", "title": "", "text": "375 (D.C.S.D.Tex.1980), the district judge refused to permit a plaintiff to sever its claim against the bankrupt and proceed against the individual defendants, one of whom was a corporate officer of the bankrupt, on a charge of procuring monies by fraud and misrepresentation. The court stated that the allegations against the bankrupt and its officers were “inextricably interwoven, presenting common questions of law and fact, which can be resolved in one proceeding,” id. at 376, and “arise from the same factual and legal basis.” Id. at 377. Despite this language, the courtseemed to rest its conclusion not on the automatic stay provision, but on the court’s inherent discretion to permit or deny severance of actions in light of considerations of justice and efficiency. The reasoning of neither White Motor nor Federal Life appears to be determinative of the instant issues. Federal Life had emphasized that severance “would not be conducive to judicial economy and would unduly hinder the efforts of the Bankruptcy Court.” Id. at 376. With thousands of cases pending across the country, involving entirely independent codefendants, these considerations are not applicable herein. In light of the above authority, this court concludes that section 362 does not apply to claims against non-bankrupt codefendants. IV. There is no impediment to a severance of Unarco and Johns-Manville under Rule 19 of the Federal Rules of Civil Procedure, for they are not indispensable parties. Joint tortfeasors are not considered indispensable parties under federal law. Field v. Volkswagenwerk AG, 626 F.2d 293, 298 n.7 (3d Cir. 1980); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir. 1970); Kindle, supra; Windert Watch Co., Inc. v. Remex Electronics, Ltd., 468 F.Supp. 1242, 1246 (S.D.N.Y.1979); 7 Wright & Miller, Federal Practice and Procedure § 1623 at 241-42 (1973 & Supp. 1981). The court in Royal Truck considered that very point. The co-debtor contended that a stay of the proceedings was necessary because the bankrupt was an indispensable party under Rule 19. The court disagreed. In reaching its conclusion, the court analyzed the four interests suggested by Rule 19(b) that must be examined in each case to" }, { "docid": "16686520", "title": "", "text": "have an interest in the subject matter of the action so that their “absence may ... as a practical matter impair or impede [their] ability to protect that interest . . . .” Certainly the attorneys’ malpractice will be litigated in the suit against AFM. But the attorneys cannot be bound by the judgment because they are not parties nor do they control the litigation. If the insurance company should lose here the attorneys will have a full opportunity to contest any malpractice on their part before being held liable to the insurance company. See Willis v. Semmes, Bowen & Semmes, 441 F.Supp. 1235, 1246 (E.D.Va.1977); Wylain, Inc. v. Kidde Consumer Durables Corp., 74 F.R.D. 434 (D.Del.1977). See also, Milligan v. Anderson, 522 F.2d 1202 (10th Cir. 1975). The insurance company will adequately defend any charge of malpractice by the attorneys since its liability turns on this. To fall within Rule 19(a)(2)(ii), someone already a party must be left “subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations” because of the nonjoinder. Conceivably AFM could be found liable in this action and yet lose against the attorneys on the malpractice issue in a later suit. AFM can avoid this result, however, by joining the attorneys as third party defendants in the present action under Fed.R.Civ.P. 14. See Willis v. Semmes, Bowen & Semmes, 441 F.Supp. 1235, 1246 (E.D.Va.1977); 3 Moore’s Federal Practice H 14.26 at 14-525 (2d ed. 1979 rev.). We cannot conclude, therefore, that AFM is subjected to a substantial risk of inconsistent obligations. Since 19(a) does not apply, 19(b) cannot be applied to dismiss the action. Morgan Guaranty Trust Co. v. Martin, 466 F.2d 593, 598 (7th Cir. 1972). It concerns us, as it did the trial judge, to go forward with the federal action in view of the concurrent state suit, under the circumstances of this case. Only state law issues are involved here; there is no substantial federal interest in the litigation. Because the insurance company acted only through its attorneys, their malfeasance is necessarily the heart of Brown’s case. Therefore, unless" }, { "docid": "8020250", "title": "", "text": "party under Rule 19 was disapproved by the Supreme Court in Provident Tradesmen’s Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968) it is evident that the traditional rule that joint tort-feasors and contractual co-obligors are not indispensable parties is largely the result of just such a pragmatic approach as the Court advocated in Provident Bank, supra. Such a classification is justified in that such persons are nearly always jointly and severally liable thereby eliminating prejudice through non-joinder both to parties to the action and unjoined participants in the alleged wrongdoing. The rule regarding joint tort-feasors and joint and several obligors makes legal sense and it therefore has survived the 1966 reformulation of Rule 19 and that rule’s interpretation in Provident Bank, supra, two years later. As noted earlier the only possible theories for liability on Boothe’s part are breach of contract and legal malpractice. Since any liability of Semmes and Boothe, if joined as codefendants, would be joint and several on either theory of recovery there can be no prejudice to Boothe in not being joined. Even if Semmes were held liable as principal for the breach of contract or malpractice of Boothe as its agent such an adjudication could not collaterally estop Boothe, a non-party from contesting liability in any future litigation. Contrary to defendant’s assertion, a determination adverse to Semmes can have no “precedential” value as to Boothe. Plaintiff has given no indication that he seeks to hold defendant liable for any but its own acts, but should plaintiff advance an agency theory of liability such an eventuality would not make Boothe, as agent, an indispensable party. Milligan v. Anderson, 522 F.2d 1202, 1205 (10th Cir. 1975); Wylain, Inc. v. Kidde Consumer Durable Corp., 74 F.R.D. 434, 436 (D.Del.1977); Virginia Electric and Power Co. v. Bunker Ramo Corp., 61 F.R.D. 366, 368 (E.D.Va.1973); Cass v. Sonnenblick-Goldman Corp., 287 F.Supp. 815, 818 (E.D.Pa.1968); Lind v. Canada Dry Corp., 283 F.Supp. 861, 863 (D.Minn.1968). The case of Pauley v. Pauley, 58 F.R.D. 386 (D.Md.1972) cited by defendant is clearly distinguishable since unlike" }, { "docid": "22216854", "title": "", "text": "362 itself), products liability plaintiffs cannot dismiss a reorganization debtor and proceed against co-defendants only. 11 B.R. at 295. These comments, however, are dicta. The scope of the automatic stay was not an issue in White Motor. Rather, White Motor involved the statutory authority of a bankruptcy judge to appoint a special master. Moreover, the cases relied upon by the bankruptcy judge to support his interpretation of the stay, Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940) and Potts v. Potts, 142 F.2d 883 (6th Cir.1944), cert. denied, 324 U.S. 868, 65 S.Ct. 910, 89 L.Ed. 1423 (1945), did not involve the issue of the effect of the stay on co-defendants. In light of the clear language and legislative history of Section 362(a), the promulgation of a specific provision to stay proceedings against co-defendants of Chapter 13 debtors and case law interpretation, this court holds that Section 362 is limited in scope to the debtor and does not operate to stay actions against the co-defendants of this debtor. Moreover, it cannot be held that as a matter of law Manville is an indispensable party to the asbestos litigation. Under federal law, joint tortfeasors are not considered indispensable parties. Field v. Volkswagenwerk A.G., 626 F.2d 293, 298 n. 7 (3d Cir.1980); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir.1970); Windert Watch Co., Inc. v. Remex Electronics, Ltd., 468 F.Supp. 1242, 1246 (S.D.N.Y.1979), 7 Wright & Miller, Federal Practice and Procedure § 1623 at 241-42 (1973 & Supp. 1981). Further, a universal finding that Manville is an indispensable party to all the thousands of cases in which it is currently a defendant is not possible on the facts before the court today. This is because the essential inquiry in determining indispensability has been articulated as follows: There are two essential tests of an indispensable party: (1) can relief be afforded the plaintiff without the presence of the other party? (2) can the case be decided on its merits without prejudicing the rights of the other party? Pickett v. Paine, 199 S.E.2d 223 at 230, 230 Ga." }, { "docid": "13528422", "title": "", "text": "Corporation v. South Seas Enterprises, Ltd., 291 F.2d 435, 436 (9th Cir.1961) (nor, ipso facto, are joint obligors indispensable parties); Greenleaf v. Safeway Trails, Inc., 140 F.2d 889, 890 (2nd Cir.), cert. denied, 322 U.S. 736 [322 U.S. 736, 88 L.Ed. 1569] (1944) (same); Willis v. Semmes, Bowen & Semmes, 441 F.Supp. 1235, 1245 (E.D.Va.1977) (same); Wolgin v. Atlas United Financial Corp., 397 F.Supp. 1003, 1012 (E.D.Pa.1975), aff’d mem., 530 F.2d 966 (3rd Cir.1976) (same); Miller v. Camcarco Contractors, Inc., 11 F.R.D. 560, 562 (S.D.N.Y.1951) (a joint obligor who will not deprive the court of jurisdiction over the other parties is a necessary party). The two cases cited by McLarty which hold that joint obligors can insist that a co-obligor be joined as a party defendant represent the minority viewpoint. See Fredstrom v. Giroux Post, No. 11 of American Legion, 94 F.Supp. 983, 985 (W.D.Mich.1951); Schram v. Perkins, 38 F.Supp. 404, 407 (E.D.Mich.1941). These cases are not, however, controlling precedent in this Court; instead, this Court accepts the majority viewpoint and finds that joint obligors are not indispensable parties to a suit based on breach of contract. The conclusion just reached is also consistent with that found in Moore’s Federal Practice. The case of joint obligors is entirely different and a holding that they were indispensable parties would often prevent enforcement of their liability, either because their joinder would oust the court of federal jurisdiction, or one or more of them could successfully object to venue, or; perhaps more important, service of process could not be made upon all of the obligors in the forum, federal or state. As we have noted, many states have made joint liability both joint and several to permit suit without the joinder of all; and even where the liability remains joint, the obligors are only conditionally necessary. Under Rule 19(a) their joinder may be dispensed with whenever the generous conditions of that Rule are satisfied. Stated somewhat differently all joint obligors should be joined in order that there may be a complete determination of the controversy, provided they are subject to the jurisdiction of" }, { "docid": "22120943", "title": "", "text": "Federal Rules of Civil Procedure. Where joinder of a party would destroy subject matter jurisdiction, the court must dismiss the action if that party is ‘indispensable’ to the litigation.”). She bases this argument on the fact that her state court complaint identifies Jim Burke and MS Dealer as coconspirators and joint tortfeasors. However, that mere fact does not render Jim Burke an indispensable party. See Temple v. Synthes Corp., 498 U.S. 5, 7, 111 S.Ct. 315, 112 L.Ed.2d 263 (1990) (per curiam) (“It has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit. ... The Advisory Committee Notes to Rule 19(a) explicitly state that ‘a tort-feasor with the usual “joint-and-several” liability is merely a permissive party to an action against another with like liability.’ ” (citations omitted)); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir.1970) (“Rule 19, as amended in 1966, was not meant to unsettle the well-established authority to the effect that joint tortfeasors or cocon-spirators are not persons whose absence from a case will result in dismissal for non-joinder.”); see also Pasco Int’l (London) Ltd. v. Stenograph Corp., 637 F.2d 496, 501 n. 10 (7th Cir.1980) (recognizing the “established principle” that coconspirators are not indispensable parties). Moreover, we note that (1) an arbitrator has already ruled in favor of Jim Burke on all of Franklin’s claims against it and (2) the state court has dismissed Franklin’s claims against Jim Burke with prejudice. A party is “indispensable” only if he meets either of the threshold tests of Rule 19(a) of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 19(b). That provision requires joinder if (1) in the person’s absence complete relief cannot be accorded among those already parties or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial" }, { "docid": "22120942", "title": "", "text": "does not affect jurisdiction in this, an independent action” to compel arbitration. Id. While acknowledging that the McCollum court has already specifically considered and rejected the argument Franklin raises here, she asks us to modify or reverse that case. We decline that request. See Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir.1998) (‘We are bound to follow a prior panel or en banc holding, except where that holding has been overruled or undermined to the point of abrogation by a subsequent en banc or Supreme Court decision.”). Alternatively, Franklin contends that diversity jurisdiction is lacking because Jim Burke is an “indispensable party,” as that term is defined in Rule 19 of the Federal Rules of Civil Procedure, to the petition to compel arbitration. See Doctor’s Assocs., Inc. v. Distajo, 66 F.3d 438, 445 (2d Cir.1995) (“As with any federal action, diversity of citizenship is determined by reference to the parties named in the proceeding before the district court, as well as any indispensable parties who must be joined pursuant to Rule 19 of the Federal Rules of Civil Procedure. Where joinder of a party would destroy subject matter jurisdiction, the court must dismiss the action if that party is ‘indispensable’ to the litigation.”). She bases this argument on the fact that her state court complaint identifies Jim Burke and MS Dealer as coconspirators and joint tortfeasors. However, that mere fact does not render Jim Burke an indispensable party. See Temple v. Synthes Corp., 498 U.S. 5, 7, 111 S.Ct. 315, 112 L.Ed.2d 263 (1990) (per curiam) (“It has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit. ... The Advisory Committee Notes to Rule 19(a) explicitly state that ‘a tort-feasor with the usual “joint-and-several” liability is merely a permissive party to an action against another with like liability.’ ” (citations omitted)); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir.1970) (“Rule 19, as amended in 1966, was not meant to unsettle the well-established authority to the effect that joint tortfeasors or cocon-spirators are not persons whose" }, { "docid": "1434471", "title": "", "text": "of Stenograph, but Rule 65 obviously contemplates that agents need not be parties to suits for injunctive relief against their principals. A harmonious reading of Rule 65 and Rule 19(b) therefore contemplates that this sort of impact is not a source of prejudice under the tests of Rule 19(b). The possibility of monetary relief in this action does nothing to change our conclusion. It is difficult to perceive how Croxford would be prejudiced by an unfavorable judgment for money damages against Stenograph. Croxford would not be liable for any of those damages and could assert any of his defenses in any indemnity or contribution action brought against him by Stenograph. Stenograph asserts that Croxford will be prejudiced by the impact of the suit on Croxford’s business reputation in Nigeria. Any agent will suffer some adverse practical consequences when his principal is held vicariously liable on account of the agent’s conduct, but this is not a sufficient interest for finding the agent indispensable under Rule 19. See Wylain, Inc. v. Kidde Consumer Durables Corp., 74 F.R.D. 434, 436 (D.Del.1977). Any adverse impact on an agent of a money judgment against his principal would certainly be less intrusive than the impact of the agent’s being bound by an injunction against the principal. But, as we have seen, the possibility of injunctive relief against the principal does not result in any prejudice to the agent which is cognizable under Rule 19(b). Hence, we similarly find no cognizable prejudice with respect to any claim for monetary relief. The cases generally support this conclusion. For example, in Willis v. Semmes, Bowen & Semmes, 441 F.Supp. 1235, 1245-46 (E.D.Va.1977), the plaintiff sought, inter alia, to hold a law firm vicariously liable for the acts of its agent. The court ruled, however, that the agent was not an indispensable party in a tort action against the principal. The same principle applies in contract disputes. In Milligan v. Anderson, 522 F.2d 1202, 1204-05 (10th Cir. 1975), the plaintiffs sought to rescind certain contracts between themselves and the defendant because of the allegedly fraudulent acts of the defendant’s agent," }, { "docid": "4010742", "title": "", "text": "the negligent misrepresentation count (counts IV and II, respectively), contending that Ness must be joined as party and that his joinder would destroy diversity. It is correct that if Ness is joined to this action pursuant to Fed.R.Civ.P. 19, then diversity as a basis for federal jurisdiction under 28 U.S.C. § 1332 would be destroyed. Although a U.S. citizen, Ness resides in Australia and thus is a citizen of no particular state. American citizens without citizenship in a particular state cannot be parties in a diversity action. See Sadat v. Mertes, 615 F.2d 1176, 1180 (7th Cir.1980). The joinder of Ness, if necessary, would therefore destroy diversity as a basis of jurisdiction on the state law claims. Rule 19, Fed.R.Civ.P., provides that if an absent party is needed for a just adjudication, but joinder is not feasible or would otherwise deprive the court of jurisdiction, the inquiry becomes, under Rule 19(b), whether “in equity and good conscience” the case should go forward or be dismissed, “the absent party being thus regarded as indispensable.” The Rule enumerates four factors for consideration. First, whether the person’s absence will prejudice him or the parties; second, whether a remedy can be fashioned in such a way to lessen any prejudice; third, whether a judgment in the person’s absence will be adequate; and fourth, whether the plaintiff will have an adequate remedy if the federal case is dismissed. These factors are not to be applied exclusively, or mechanically or even with equal weight to each. Rather, the court has discretion to weigh pragmatically the factors it considers necessary for a just decision. See, e.g., Cloverleaf Standardbred Owners Assoc. v. National Bank, 699 F.2d 1274, 1277 (D.D.C.1983). The plaintiffs in this case argue that because Ness was the defendants’ agent he must be joined to effect a complete remedy. Principals and agents are not, as a general rule, indispensable parties. See, e.g., Willis v. Semmes, Bowen & Semmes, 441 F.Supp. 1235, 1246 (E.D.Va.1977); 7 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1623 (2d ed. 1986). Ness’ absence would not prejudice him" }, { "docid": "16686519", "title": "", "text": "a lawsuit challenging the conduct of that defense would necessarily involve a determination of the attorneys’ malfeasance. The trial judge was concerned with this, declaring It would be necessary to call the counsel involved as witnesses and in effect try the issue of their malpractice in order to resolve the issue of liability of the defendant. That such a trial would impede the ability of counsel to protect their professional reputations and means of livelihood should not admit of question. The judge also placed emphasis on the presence of a concurrent state court action in which both the insurance company and attorneys were joined as defendants, stressing that inconsistent results could be reached in each case. The trial court appears to have found the attorneys are indispensable parties under the requirements of Fed.R.Civ.P. 19, and dismissed the action after weighing the factors set out in 19(b). We hold this was not an appropriate ground for dismissal. Rule 19(a)(1) is inapplicable because Brown can get complete relief from AFM. To fall under 19(a)(2)(i), the attorneys must have an interest in the subject matter of the action so that their “absence may ... as a practical matter impair or impede [their] ability to protect that interest . . . .” Certainly the attorneys’ malpractice will be litigated in the suit against AFM. But the attorneys cannot be bound by the judgment because they are not parties nor do they control the litigation. If the insurance company should lose here the attorneys will have a full opportunity to contest any malpractice on their part before being held liable to the insurance company. See Willis v. Semmes, Bowen & Semmes, 441 F.Supp. 1235, 1246 (E.D.Va.1977); Wylain, Inc. v. Kidde Consumer Durables Corp., 74 F.R.D. 434 (D.Del.1977). See also, Milligan v. Anderson, 522 F.2d 1202 (10th Cir. 1975). The insurance company will adequately defend any charge of malpractice by the attorneys since its liability turns on this. To fall within Rule 19(a)(2)(ii), someone already a party must be left “subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations” because of the" }, { "docid": "13167851", "title": "", "text": "U.S. 102, 125, note 22, 88 S.Ct. 733, 746, note 22, 19 L.Ed.2d 936 (1968). It is beyond peradventure that joint tortfeasors are not indispensable parties in the federal forum. See: Field v. Volkswagenwerk-AG, 626 F.2d 293, 298 n. 7 (3d Cir.1980); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir.1970); Windert Watch Co., Inc. v. Remex Electronics, Ltd., 468 F.Supp. 1242, 1246 (S.D.N.Y.1979); 7 Wright & Miller, Federal Practice and Procedure, § 1623 at 241-42 (1973 & Supp. 1981); Royal Truck and Trailer v. Armadora Maritime Salvadorena, 10 B.R. 488 (N.D. 111.1981); Jett v. Phillips & Associates, 439 F.2d 987 (10th Cir.1971); Sandobal v. Armour & Co., 429 F.2d 249 (8th Cir.1970); 3A Moore, Federal Practice ¶ 19.07(1) (2d ed. 1967). Indeed, the Advisory Committee Notes accompanying Rule 19 provide that “a tortfeasor with the usual ‘joint and several’ liability is merely a permissive party to an action against another with like liability” and “Joinder of these tortfeasors continues to be regulated by Rule 20”. Since the complaints at bar allege conditions of asbestosis resulting from exposure to products of both the solvent co-defendants and Unarco and/or J-M, the Chapter 11 debtors are joint tortfeasors and accordingly not indispensable. See also: In re Related Asbestos Cases, 23 B.R. 523 (N.D.Cal.1982); Austin v. Unarco Industries, Inc., 705 F.2d 1 (1st Cir.1983); Ashworth v. Johns-Manville Sales Corp., Case Nos. C78-470, C81-1545, C77-1088, C79-167 (N.D.Ohio Mar. 21, 1983); In re Stay of Proceedings Against Defendants Johns-Manville Corp. v. Unarco Industries, Inc., 99 Wash.2d 193, 660 P.2d 271 (S.C.Wash.1983) (en banc). Last, the solvent co-defendants of Unarco and J-M implore this Court to invoke its inherent power to stay proceedings. Landis v. North American Co., 299 U.S. 248, 57 S.Ct. 163, 81 L.Ed. 153 (1936). It is submitted that the factors incorporated in Rule 19(b), Fed.R.Civ.P., as interpreted in Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968), should be employed, by analogy, to determine of such inherent power should be exercised. Particularly, the solvent co-defendants conjecture that a continuation of proceedings in the" }, { "docid": "23181918", "title": "", "text": "the complaint was that [the absentee], acting as an agent for [the defendant], made false and fraudulent representations to the three plaintiffs,” the absentee was not indispensable because he “had no personal interest, as such, in the contract” which plaintiffs sought to rescind); Wylain, 74 F.R.D. at 436-37 (“Whenever a judgment is entered against the principal on account of his agent’s conduct, some adverse consequences to the agent may reasonably be expected, but it is clear, as a general matter, that the agent is not a necessary party under Rule 19(a)(2)(i)”); Willis v. Semmes, Bowen & Semmes, 441 F.Supp. 1235, 1245 (E.D.Va.1977) (complaint alleged malpractice by absentee law firm; absentee not indispensable because there was “no distinct subject matter” in which the absentee “has an interest that will be affected by this litigation”). Cases interpreting related Rule 24(a) have reached similar results. See Sierra Club v. United States Army Corps of Engineers, 709 F.2d 175, 176-77 (2d Cir.1983) (intervention denied because firm’s concern that “its professional reputation is under attack” is not an interest relating to the subject of the action, and an adverse judgment would have, at most, an indirect effect on the firm); Edmondson v. State of Nebraska, 383 F.2d 123, 127 (8th Cir.1967) (would-be intervenor “asserts that his interest ... is provided by plaintiffs’ allegation of his fraud and collusion,” but the “mere fact” that proof of actions “amounted to fraud cannot serve as a basis for mandatory intervention without a showing that a legal detriment flows from this finding”). Second, Shearson points to circumstances present in this case which suggest that Shearson and its Subsidiary may be “joint tortfeasors,” i.e., that the Subsidiary’s initial wrongdoing and Shearson’s “coverup” together may have caused Bonelli’s injuries. Insofar as Bonelli proves that Shear-son and its Subsidiary are joint tortfeasors, a verdict in her favor conceivably could work to the Subsidiary’s disadvantage in a later proceeding. See Flynn v. Hubbard, 782 F.2d 1084, 1089 (1st Cir.1986) (each joint tortfeasor is liable for the entire amount of the recovery). Yet, if one thing is clear in respect to Rule 19, it" }, { "docid": "1434472", "title": "", "text": "434, 436 (D.Del.1977). Any adverse impact on an agent of a money judgment against his principal would certainly be less intrusive than the impact of the agent’s being bound by an injunction against the principal. But, as we have seen, the possibility of injunctive relief against the principal does not result in any prejudice to the agent which is cognizable under Rule 19(b). Hence, we similarly find no cognizable prejudice with respect to any claim for monetary relief. The cases generally support this conclusion. For example, in Willis v. Semmes, Bowen & Semmes, 441 F.Supp. 1235, 1245-46 (E.D.Va.1977), the plaintiff sought, inter alia, to hold a law firm vicariously liable for the acts of its agent. The court ruled, however, that the agent was not an indispensable party in a tort action against the principal. The same principle applies in contract disputes. In Milligan v. Anderson, 522 F.2d 1202, 1204-05 (10th Cir. 1975), the plaintiffs sought to rescind certain contracts between themselves and the defendant because of the allegedly fraudulent acts of the defendant’s agent, the absent (but purportedly indispensable) person in the suit. The agent had entered into the oral contracts on behalf of his principal. The court found that the agent was not an indispensable party because the dispute was between the plaintiffs and the principal. The court noted that the agent had no personal interest in the contract which he negotiated for his principal. The defendants rely heavily on Glenny v. American Metal Climax, Inc., 494 F.2d 651, 653-54 (10th Cir. 1974), to establish a contrary rule of law. In Glenny, landowner plaintiffs sought injunctive relief and money damages from the parent companies of a corporation which operated a smelter. The plaintiffs were unable, under the constraints of diversity jurisdiction, to directly sue the subsidiary that operated the smelter. The court found that, in any action against the principal, the subsidiary was an indispensable party. But the parent-subsidiary relationship of Glenny differs significantly from the principal-agent relationship in the instant case and dictates a result different from the one we reach here. “Generally a corporation which owns" }, { "docid": "13167850", "title": "", "text": "construction of Chapters 11 and 13 counsel that Congress did not envision or intend the § 362 stay to be utilized in a manner other than for the purpose of protecting the debtor and its estate. See also: In re Related Asbestos Cases, supra, 23 B.R. at 528; Pitts v. Unarco Industries, Inc., 698 F.2d 313 (7th Cir. 1983); In re Massachusetts Asbestos Cases, M.B.L. Nos. 1 & 2 (D.Mass. Sept. 23, 1982); In re Stay of Proceedings Against Defendants Johns-Manville Corporation and Unarco Industries, Inc., 99 Wash.2d 193, 660 P.2d 271 (S.C.Wash.1983) (en banc); Clutter v. Johns-Manville, et al, No. C-78-1229 (N.D. Ohio Aug. 2, 1982); In re UNR Industries, Inc., supra. The solvent co-defendants of Un-arco and J-M also urge a judicial classification of the Chapter 11 debtors as “indis-pensible” so as to mandate a stay of proceedings under Rule 19, Fed.R.Civ.P. Although the actions consolidated on appeal are uniformly predicated upon diversity, the issue of joinder and indispensability is one of federal law. Provident Tradesmans Bank & Trust Co. v. Patterson, 390 U.S. 102, 125, note 22, 88 S.Ct. 733, 746, note 22, 19 L.Ed.2d 936 (1968). It is beyond peradventure that joint tortfeasors are not indispensable parties in the federal forum. See: Field v. Volkswagenwerk-AG, 626 F.2d 293, 298 n. 7 (3d Cir.1980); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir.1970); Windert Watch Co., Inc. v. Remex Electronics, Ltd., 468 F.Supp. 1242, 1246 (S.D.N.Y.1979); 7 Wright & Miller, Federal Practice and Procedure, § 1623 at 241-42 (1973 & Supp. 1981); Royal Truck and Trailer v. Armadora Maritime Salvadorena, 10 B.R. 488 (N.D. 111.1981); Jett v. Phillips & Associates, 439 F.2d 987 (10th Cir.1971); Sandobal v. Armour & Co., 429 F.2d 249 (8th Cir.1970); 3A Moore, Federal Practice ¶ 19.07(1) (2d ed. 1967). Indeed, the Advisory Committee Notes accompanying Rule 19 provide that “a tortfeasor with the usual ‘joint and several’ liability is merely a permissive party to an action against another with like liability” and “Joinder of these tortfeasors continues to be regulated by Rule 20”. Since the complaints at bar allege conditions of asbestosis" } ]

[ { "docid": "17352100", "title": "", "text": "verity of the testimony, matters which are part and parcel of the purpose of the reference to the Master to make findings and report to the Court, are absent____ Id. at 518. The Court noted that the district court at no time had an opportunity to see the witnesses. The defect, according to the Seventh Circuit, was the failure of the one who heard the evidence to be the one who rendered the decision. The Court reasoned that a due process hearing was designed “to afford the safeguard that the one who decides shall be bound in good conscience to consider the evidence, to be guided by that alone and to reach his conclusion uninfluenced by extraneous considerations.” Id. at 519. We find that the Stolz case and the Dental Products ease are reconcilable only if one takes the view that the evidence presented in the Dental Products case was hotly disputed and that the evidence in the Stolz case was not disputed. See 5A Moore, Federal Practice § 53.10[2] (1984) (commenting on Stolz case and Dental Products case). We conclude that the reasoning of the Dental Products case is more persuasive than the reasoning of the Stolz case because it stresses that a successor judge simply cannot make credibility determinations based upon the record. A hearing de novo before a new successor master or before the district court must be conducted if the case requires the trier of fact to make credibility determinations concerning the testimony of witnesses; otherwise the parties right to a full due process hearing would be severely undercut. This case is somewhat different from the Stolz case in that no findings were prepared by a master for a judge to review and instead of a successor master there was a successor judge. We do not agree with Stolz’s assumption that a master's factual findings may be easily disregarded by a district court judge. Deference to the trier of fact, that is, the person who sees the witness and hears the testimony, is an essential feature of the adversary trial and the notion that the person" } ]

[ { "docid": "13268443", "title": "", "text": "Nat’l Heritage Found., 478 B.R. at 232. B. Our review of the record shows that one factor—the possibility that NHF will have to indemnify its officers and directors for litigation expenses—weighs clearly in favor of the Release Provision. But NHF has failed to provide sufficient evidence that it faces a strong possibility of suits that would trigger its indemnity obligation, much less that such suits would threaten its reorganization. And an indemnity obligation is not, by itself, sufficient to justify a non-debtor release. If it were, “third party releases would be the norm, not the exception, in Chapter 11 cases.” Id. at 232. Given the extraordinary breadth of this particular release, we are also troubled by NHF’s failure to provide a mechanism outside of the bankruptcy process to satisfy donor claims. In sum, we agree with the district court that NHF has failed to demonstrate that it faces exceptional circumstances justifying the enforcement of the Release Provision in its Reorganization Plan. We emphasize that our decision is ultimately rooted in NHF’s failure of proof rather than circumstance alone. A debtor need not demonstrate that every Dow Coming factor weighs in its favor to obtain approval of a non-debtor release. But, as we noted in NHF I, a debtor must provide adequate factual support to show that the circumstances warrant such exceptional relief, and NHF has failed to do so here. III. For these reasons, we affirm the district court’s judgment. AFFIRMED . In November 2011, the IRS revoked NHF’s status as a section 501(c) public charity. . The Plan also contained an Exculpation Provision, barring suits against the Released Parties for any acts or omissions in connection with the bankruptcy, and an Injunction Provision, enjoining suits in violation of either the Release or Exculpation Provision. The bankruptcy court upheld the Exculpation Provision, see In re Nat’l Heritage Found., Inc., 478 B.R. 216, 234 (Bankr.E.D.Va.2012), a decision that neither party challenged. It also approved the Injunction Provision, but only to the extent that it enforced the Exculpation Provision and not the Release Provision. See id. Based on our holding that the" }, { "docid": "8286518", "title": "", "text": "not received under any reservation of rights. The Insurer has not notified the Debtors that any forthcoming payments under the Insurance Policies would be issued under any such reservation. But even if a sound legal and factual basis for Warnick’s malpractice claim did exist, the Debtors are fully entitled to adjust that claim as part of a chapter 11 plan as they have proposed in the Liquidating Plan. See 11 U.S.C. § 1123(b)(3)(A). Exculpation provisions in chapter 11 plans are not uncommon and “generally are permissible, so long as they are properly limited and not overly broad.” In re Nat’l Heritage Found., Inc., 478 B.R. 216, 233 (Bankr.E.D.Va.2012) (citing In re PWS Holding Corp., 228 F.3d 224, 246 (3d Cir.2000)). The practical effect of a proper exculpation provision is not to provide a release for any party, but to raise the standard of liability of fiduciaries for their conduct during the bankruptcy case. See In re PWS Holding Corp., 228 F.3d at 247 (noting an exculpation provision “sets forth the appropriate standard of liability”); In re Friedman’s Inc., 356 B.R. 758, 763-64 (Bankr.S.D.Ga.2005) (explaining that exculpation provision will “affirm the scope of their [the professionals’] liability or non-liability”). Exculpation is appropriate when it is solely limited to fiduciaries who have served a debtor through a chapter 11 proceeding. See In re Enron Corp., 326 B.R. 497 (S.D.N.Y.2005) (affirming a similar exculpation provision for fiduciaries); In re Washington Mutual, 442 B.R. 314, 350-51 (Bankr.D.Del.2011) (“The exculpation clause must be limited to the fiduciaries who have served during the chapter 11 proceeding: estate professionals, the Committees and their members, and the Debtors’ directors and officers.”). Indeed, this Court has approved exculpation provisions in a number of chapter 11 cases. Warnick argues, as a final measure, that exculpation is improper because the Liquidating Plan is providing the Debtors’ and the Committee’s professionals with non-debtor releases. Warnick observes that § 524(e) of the Bankruptcy Code prohibits the “discharge of a debt of the debtor [from] affecting the liability of any other entity.” 11 U.S.C. § 524(e). Warnick maintains that he is a non-consenting creditor" }, { "docid": "13268444", "title": "", "text": "than circumstance alone. A debtor need not demonstrate that every Dow Coming factor weighs in its favor to obtain approval of a non-debtor release. But, as we noted in NHF I, a debtor must provide adequate factual support to show that the circumstances warrant such exceptional relief, and NHF has failed to do so here. III. For these reasons, we affirm the district court’s judgment. AFFIRMED . In November 2011, the IRS revoked NHF’s status as a section 501(c) public charity. . The Plan also contained an Exculpation Provision, barring suits against the Released Parties for any acts or omissions in connection with the bankruptcy, and an Injunction Provision, enjoining suits in violation of either the Release or Exculpation Provision. The bankruptcy court upheld the Exculpation Provision, see In re Nat’l Heritage Found., Inc., 478 B.R. 216, 234 (Bankr.E.D.Va.2012), a decision that neither party challenged. It also approved the Injunction Provision, but only to the extent that it enforced the Exculpation Provision and not the Release Provision. See id. Based on our holding that the Release Provision is unenforceable, we find no error in that judgment. . Relying on Henry A. Knott, Co. v. Chesapeake & Potomac Telephone Co. of West Virginia, 772 F.2d 78 (4th Cir.1985), NHF argues that the district court should have reviewed the bankruptcy court's factual findings on remand de novo. In Henry A. Knott, we held that a de novo hearing may be required before a successor judge \"if the case requires the trier of fact to make credibility determinations concerning the testimony of witnesses.” Id. at 85. Here, however, there was only one witness, Janet Ridgely, and her credibility was not in dispute. Rather, both courts simply found her testimony insufficient to support the Release Provision even if fully credited. Given this, we see no reason why the district court was required to depart from the general rule that the bankruptcy court’s \"[findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous.” Fed. R. Bankr.P. 8013. . The departure of Dr. John T. Houk, NHF’s former" }, { "docid": "13268430", "title": "", "text": "include whether: (1) There is an identity of interests between the debtor and the third party ...; (2) The non-debtor has contributed substantial assets to the reorganization; (3) The injunction is essential to reorganization ...; (4) The impacted class, or classes, has overwhelmingly voted to accept the plan; (5) The plan provides a mechanism to pay for all, or substantially all, of the class or classes affected by the injunction; [and] (6) The plan provides an opportunity for those claimants who choose not to settle to recover in full. Id. at 658. On remand, we instructed the bankruptcy court — “if the record permits it — to set forth specific factual findings supporting its conclusions” that the Release Provision in NHF’s Plan was valid. NHF I, 663 F.3d at 713. A different bankruptcy court judge considered the case on remand. That court gave the parties the option of reopening the record to present more evidence, but they declined to do so. Reviewing the then-existing record, the bankruptcy court made factual findings with respect to each of the Dow Coming factors. It concluded that only one factor — an identity of interests between NHF and the Released Parties — clearly weighed in favor of NHF, and it declared the Release Provision unenforceable. See In re Nat’l Heritage Found., Inc., 478 B.R. 216, 232 (Bankr.E.D.Va.2012). The district court affirmed the bankruptcy court’s ruling. See Nat’l Heritage Found., Inc. v. Behrmann, No. 1:12-cv-1329, 2013 WL 1390822, at *9 (E.D.Va. Apr. 3, 2013). NHF timely appealed. II. We review the legal conclusions of the bankruptcy court and district court de novo. Gold v. First Tenn. Bank Nat’l Ass’n (In re Taneja), 743 F.3d 423, 429 (4th Cir.2014). Like the district court below, we review the bankruptcy court’s factual findings for clear error. Id. A. Based on the record before us, we conclude that NHF has failed to carry its burden of proving that the facts and circumstances of this case justify the Release Provision. Like the courts below, we consider the evidence with respect to each Dow Coming factor in turn. 1. Under the" }, { "docid": "6637621", "title": "", "text": "Arising During the Bankruptcy Exculpation Period, to which they attached a copy of the already-filed Amended Complaint. Bankr.Dkt. No. 1035 (“Motion for Leave”). This was the first time NHF, the Houk family, and the bankruptcy court had notice of the California action, which had been pending for nearly four months. No party appealed the bankruptcy court’s decision to maintain the Exculpation Provision in the Plan; however, NHF appealed the decision to strike the Release Provision. Nat’l Heritage Found., Inc. v. Behrmann, No. 1:12cv1329 AJT/JFA (E.D.Va. 2012). On October 25, 2012, as a result of that appeal, the bankruptcy court stayed its Order striking the Release Provision while NHF appealed that decision. Bankr.Dkt. No. 1039. As a result of the court’s granting the stay, the Houk family remained protected from suit for pre-petition conduct involving NHF. Within two weeks of receiving notice of the Amended Complaint, specifically on November 6, 2012, NHF demanded that the claims in the California action against NHF and the Houk family be dismissed. Appellants refused, although they later agreed to move for a stay of. the litigation as to the Houk family, but not as to NHF. On November 14, 2012, NHF filed a Motion for Contempt and Sanctions (“Motion for Contempt”) against the Behrmanns, in which it argued that the Behrmanns had violated the Discharge and Exculpation provisions of the Plan by bringing the California action. For relief, NHF requested that the Court “require the Behrmanns to dismiss the California Action with prejudice against NHF and its Directors and Officers, and impose sanctions in the form of both compensatory and punitive damages.” Bankr.Dkt. No. 1043. On December 4, 2012, after conducting a hearing on NHF’s Motion for Contempt and the Behrmanns’ Motion for Leave, the bankruptcy court denied the Behrmanns’ motion without prejudice, expressly allowing them to renew the motion if the district court affirmed the decision striking the Release Provision and declined to stay the decision pending appeal to the Fourth Circuit. Bankr.Dkt. No. 1056. The Behrmanns did not appeal this decision. As to NHF’s Motion for Contempt, on December 20, 2012, the bankruptcy" }, { "docid": "10698389", "title": "", "text": "460 B.R. 254 (Bankr.D.Mont.2011); In, re Winn-Dixie Stores, Inc., 356 B.R. 239, 261 (Bankr.M.D.Fla.2006); In re WCI Cable, Inc., 282 B.R. 457 (Bankr.D.Or.2002). In this case, the Exculpation Provision prevents suits against the Released Parties, who are defined in Section 7.19 as \"the Debtor, Reorganized Debtor, the Committee, the members of the Committee and their designated representatives in their capacity as such, any of such parties' respective current (i.e., as of the Confirmation Date) officers, directors or employees, and any of such parties' successors and assigns.\" Debtor's Fourth Am. Plan, §~ 7.19, 7.21. The class of Released Parties, as approved by the Court, was considerably narrowed from the definition of Released Parties originally set forth in Section 7.19 of the Debtor's Fourth Amended Plan. Notably, the estate's professionals were removed from the definition of Released Parties in response to the United States Trustee's Objections. See Tr. I, p. 108 (Mr. LeForee: “[W]e are willing to remove the professionals”). The Exculpation Provision is limited to acts or omissions taken in connection the bankruptcy case itself. It does not purport to release any pre-petition claims against the officers or directors. Further, as Judge Mitchell noted, there is a “gatekeeper” function built into Section 7.21, in that Section 7.21 expressly allows for suits against the Released Parties if the claimant “obtains the prior approval of the Bankruptcy Court to bring such a claim.” Order Confirming Fourth Am. Plan of Reorganization, Docket No. 687, p. 28. The Court finds that the Exculpation Provision of Section 7.21: (a) is narrowly tailored to meet the needs of the bankruptcy estate; (b) is limited to parties who have performed necessary and valuable duties in connection with the case (excluding estate professionals); (c) is limited to acts and omissions taken in connection with the bankruptcy case; (d) does not purport to release any pre-petition claims; and (e) contains a gatekeeper function by which the Court may, in its discretion, permit an action to go forward against the exculpated parties. The Court will not disturb the Exculpation Provisions of Section 7.21. III. The Injunction Provisions (Section 7.20). The Injunction" }, { "docid": "13096209", "title": "", "text": "Vacated and remanded by published opinion. Judge DIAZ wrote the opinion, in which Chief Judge TRAXLER and Judge AGEE joined. OPINION DIAZ, Circuit Judge: We consider in this case the circumstances under which a bankruptcy court may approve nondebtor release, injunction, and exculpation provisions as part of a final plan of reorganization under Chapter 11 of the Bankruptcy Code. We hold that equitable relief provisions of the type approved in this case are permissible in certain circumstances. A bankruptcy court must, however, find facts sufficient to support its legal conclusion that a particular debtor’s circumstances entitle it to such relief. Because the bankruptcy court in this case failed to make such findings, the district court erred in affirming the bankruptcy court’s confirmation order. Accordingly, we vacate the judgment of the district court and remand for further proceedings consistent with this opinion. I. Appellee National Heritage Foundation (“NHF”) is a non-profit public charity that administers and maintains Donor-Advised Funds (“DAFs”). Appellants John R. Behrmann, Nancy Behrmann, the Highbourne Foundation, Dolores F. Anderson, and the Dodie Anderson Foundation are among the more than 9000 donors that established DAFs to be administered by NHF. Following a state court judgment of over six million dollars entered against NHF in Texas, NHF filed a voluntary petition in the U.S. Bankruptcy Court for the Eastern District of Virginia, seeking to reorganize under Chapter 11 of the Bankruptcy Code. NHF notified its donors and other parties in interest, including Appellants, of the deadline for filing proofs of claim in its bankruptcy proceeding. As part of its reorganization plan, NHF proposed three categories of unsecured claims: Class 111(A), consisting of a claim by the Mancillas family, the holder of the Texas state court judgment; Class III(B), consisting of claims held by NHF’s charitable gift annuitants; and Class III(C), consisting of all other general unsecured claims. Although NHF contended that its donors were not creditors, it provided that a donor’s claim would be treated as an unsecured Class III(C) claim provided that the claim was allowed. NHF’s proposed plan of reorganization also included certain release, injunction, and exculpation provisions" }, { "docid": "13268431", "title": "", "text": "of the Dow Coming factors. It concluded that only one factor — an identity of interests between NHF and the Released Parties — clearly weighed in favor of NHF, and it declared the Release Provision unenforceable. See In re Nat’l Heritage Found., Inc., 478 B.R. 216, 232 (Bankr.E.D.Va.2012). The district court affirmed the bankruptcy court’s ruling. See Nat’l Heritage Found., Inc. v. Behrmann, No. 1:12-cv-1329, 2013 WL 1390822, at *9 (E.D.Va. Apr. 3, 2013). NHF timely appealed. II. We review the legal conclusions of the bankruptcy court and district court de novo. Gold v. First Tenn. Bank Nat’l Ass’n (In re Taneja), 743 F.3d 423, 429 (4th Cir.2014). Like the district court below, we review the bankruptcy court’s factual findings for clear error. Id. A. Based on the record before us, we conclude that NHF has failed to carry its burden of proving that the facts and circumstances of this case justify the Release Provision. Like the courts below, we consider the evidence with respect to each Dow Coming factor in turn. 1. Under the first Dow Coming factor, a court must consider whether there is an identity of interests—usually an indemnity obligation—between the debtor and the released parties. A nondebtor release may be appropriate in such circumstances because a suit against the non-debtor may, “in essence, [be] a suit against the debtor” that risks “depleting] the assets of the estate.” NHF I, 663 F.3d at 711 (quoting In re Dow Corning, 280 F.3d at 658). We conclude that NHF has demonstrated an identity of interests between itself and the Released Parties. Under the terms of its bylaws, NHF must advance legal expenses and indemnify its officers and directors for “any action ... in which such person may be involved by reason of his being or having been a director or officer of’ NHF. J.A. 868. No security is required to ensure the covered parties repay NHF for any advanced expenses. See also In re Nat’l Heritage Found., 478 B.R. at 227-28 (describing the scope of NHF’s indemnification provisions). Such an expansive indemnity obligation is sufficient to satisfy the first" }, { "docid": "13268436", "title": "", "text": "record, we can only speculate as to the potential impact of any donor suits on NHF’s financial bottom line. NHF also argues that the Release Provision is essential because its current officers and directors may refuse to serve without such a release. In support, it points to Ridgely’s testimony that the continued service of NHF’s officers and directors is critical to the reorganization, and that a fear of third-party suits “might render [them] unwilling to serve.” J.A. 949. We find no error in the bankruptcy court’s finding that the risk of officer-and-director flight in this case is minimal. Although not irrelevant, Ridgely’s statement is hardly conclusive evidence that NHF’s officers and directors would leave without the Release Provision. And as the bankruptcy court noted, the risk of NHF’s insiders “abandoning] ship” is particularly low, given that most of them are members of a single family. In re Nat’l Heritage Found., 478 B.R. at 229. The bankruptcy court also correctly found that the Release Provision itself provides little inducement for these individuals to stay. NHF’s insiders have already been exposed to whatever liability they may have for their pre-petition conduct, and the release does not shield them from liability going forward. And even if NHF’s officers and directors do leave, NHF has not suggested that it would face difficulty recruiting new personnel. See id. at 230-31. If this failure of proof were not enough, the severability clause contained in NHF’s Reorganization Plan cements our view that the Release Provision is not essential. That clause provides that the Plan would remain in effect “[s]hould any provision in this Plan be determined to be unenforceable.” J.A. 643 (emphasis added). As we have already concluded, such language “suggests that the plan would remain viable absent the Release Provision[ ].” NHF I, 663 F.3d at 714. Under these circumstances, we do not believe NHF has carried its burden of demonstrating that the Release Provision is essential to its reorganization. This failure weighs strongly against the validity of the Release Provision. 4. To satisfy the fourth Dow Corning factor, NHF was required to prove that the" }, { "docid": "13268435", "title": "", "text": "litigation from its donors, whose numbers run in the thousands, renders the Release Provision essential, as NHF would likely have to indemnify its officers and directors for their legal expenses should such suits arise. Although we are sympathetic to NHF’s concern about the possibility of donor suits, the evidence does not suggest that its reorganization is doomed without the Release Provision. NHF has provided little to no evidence regarding the number of likely donor claims, the nature of such claims, or their potential merit. NHF’s vice president, Janet Ridgely, stated that NHF insiders are concerned about donors bringing suit, but that is simply too vague to substantiate the risk of litigation. Cf. In re Dow Corning Corp., 287 B.R. 396, 411 (E.D.Mich.2002) (finding a release provision essential when more than 14,000 lawsuits had already been filed against a non-debtor). Nor does the fact that a prior judgment against NHF was, by itself, sufficient to trigger bankruptcy establish that donor litigation, should it materialize, would imperil NHF’s reorganization. Based on the dearth of evidence in the record, we can only speculate as to the potential impact of any donor suits on NHF’s financial bottom line. NHF also argues that the Release Provision is essential because its current officers and directors may refuse to serve without such a release. In support, it points to Ridgely’s testimony that the continued service of NHF’s officers and directors is critical to the reorganization, and that a fear of third-party suits “might render [them] unwilling to serve.” J.A. 949. We find no error in the bankruptcy court’s finding that the risk of officer-and-director flight in this case is minimal. Although not irrelevant, Ridgely’s statement is hardly conclusive evidence that NHF’s officers and directors would leave without the Release Provision. And as the bankruptcy court noted, the risk of NHF’s insiders “abandoning] ship” is particularly low, given that most of them are members of a single family. In re Nat’l Heritage Found., 478 B.R. at 229. The bankruptcy court also correctly found that the Release Provision itself provides little inducement for these individuals to stay. NHF’s insiders" }, { "docid": "6637616", "title": "", "text": "before the district court, the Behrmanns settled their dispute with NHF and withdrew their claim from the bankruptcy proceedings after NHF agreed to contribute $590,000.00 to a charity (or charities) of the Behrmanns’ choice in exchange for a release of all claims against it. Bankr.Dkt. Nos. 948, 1023-3. The settlement agreement did not release any claims against the Houk family. Bankr.Dkt. No. 1023-3. On August 17, 2010, the district court affirmed the bankruptcy court’s entry of the Confirmation Order. The Behrmanns moved to stay the Confirmation Order, but both the district court and the Fourth Circuit denied the Behrmanns’ request. On March 16, 2011, the Behrmanns dismissed their pending civil action against the Houk family in the district court “only as the result of the compulsion of the October 16, 2009 Order (the ‘Confirmation Order’) of the Bankruptcy Court confirming the Fourth Amended Plan of Reorganization.” In their appeal of the Confirmation Order to the Fourth Circuit, the Behrmanns again challenged the good faith of NHF and the Houk family in proposing the Plan and again asserted their theory that the Houk family confiscated donated funds by using them to pay off debts in the bankruptcy proceeding. Behrmann v. Nat’l Heritage Found., 663 F.3d 704 (4th Cir.2011). The Behrmanns were partially successful on appeal. Although the Fourth Circuit rejected their “broadside” attack on the good faith of the Plan, it found that the record did not allow it to assess “whether NHF’s circumstances entitle it to the benefit of the” Release and Exculpation provisions. Id. at 710-13. Accordingly, the Fourth Circuit vacated the district court’s decision affirming the Release and Exculpation provisions and remanded the case to allow the bankruptcy court “to set forth specific factual findings supporting its conclusions.” Id. at 713. After the case was remanded, the bankruptcy court held a status conference on March 6, 2012. Bankr.Dkt. No. 997. At that hearing, the Behrmanns’ bankruptcy counsel, Glenn Merrick, asked the court to vacate the Release and Exculpation provisions in light of the Fourth Circuit’s decision. Id. Concerned about the prospect of “piecemeal” litigation, the bankruptcy court asked" }, { "docid": "13268427", "title": "", "text": "Affirmed by published opinion. Judge DIAZ wrote the opinion, in which Judge WILKINSON and Judge AGEE joined. ON REHEARING DIAZ, Circuit Judge: On remand following an earlier appeal in this ease, a bankruptcy court ruled that the non-debtor release provision in National Heritage Foundation’s Chapter 11 reorganization plan was unenforceable. The district court affirmed. On appeal to this court, NHF argues that the courts below erred, claiming that the facts and circumstances surrounding its bankruptcy are sufficiently unique to justify the release. Finding insufficient evidence to support NHF’s contentions, we affirm. I. A detailed recitation of the facts underlying this case is contained in our previous opinion, Behrmann v. National Heritage Foundation, Inc., 663 F.3d 704 (4th Cir.2011) (NHF I). We recite only those facts relevant to this appeal. NHF is a non-profit public charity that administers and maintains Donor-Advised Funds. These are funds in which donors relinquish all right and interest in the assets they donate. The sponsoring charitable organization — in this case, NHF— owns and controls all of the donated assets, although donors retain the right to make non-binding recommendations regarding the use of the assets. In 2009, NHF filed a voluntary petition for reorganization under Chapter 11 of the Bankruptcy Code after a state court entered a multimillion dollar judgment against it. After multiple revisions, the bankruptcy court approved NHF’s Fourth Amended and Restated Plan of Reorganization (the “Plan”). The Plan contained a Non-Debtor Release Provision covering NHF; the Official Committee of Unsecured Creditors (the “Committee”) and its members; any designated representatives of the Committee; and any officers, directors, or employees of NHF, the Committee, or their successors and assigns (collectively, the “Released Parties”). The Release Provision provided that the Released Parties shall not have or incur, and are hereby released from, any claim, obligation, cause of action, or liability to any party in interest who has filed a claim or who was given notice of the Debtor’s Bankruptcy Case (the “Releasing Parties”) for any act or omission before or after the Petition Date through and including the Effective Date in connection with, relating to, or" }, { "docid": "8286517", "title": "", "text": "of the estate professionals. The True Health Releases, with which Warnick has taken issue, were an integral part of the True Health Sale. The True Health Releases were carefully negotiated by both parties to the sale transaction. The Committee was actively involved in that effort. The Debtors’ Special Transaction Committee specifically approved the True Health Releases. The True Health Releases were fully disclosed to the Court and approved as part of the True Health Sale after notice and a hearing. Warnick did not object to any aspect of the True Health Sale and voted for its approval in his capacity as a member of the Board. The order approving the True Health Sale is now final and not appealable. Moreover, the Insurer has not raised the True Health Releases as a defense to coverage. The uncontroverted testimony at the Confirmation Hearing was that the Debtors had recently received a check from the Insurer for the claim they had submitted pursuant to the Protocol Order on account of their covered pre-petition defense costs. The payment was not received under any reservation of rights. The Insurer has not notified the Debtors that any forthcoming payments under the Insurance Policies would be issued under any such reservation. But even if a sound legal and factual basis for Warnick’s malpractice claim did exist, the Debtors are fully entitled to adjust that claim as part of a chapter 11 plan as they have proposed in the Liquidating Plan. See 11 U.S.C. § 1123(b)(3)(A). Exculpation provisions in chapter 11 plans are not uncommon and “generally are permissible, so long as they are properly limited and not overly broad.” In re Nat’l Heritage Found., Inc., 478 B.R. 216, 233 (Bankr.E.D.Va.2012) (citing In re PWS Holding Corp., 228 F.3d 224, 246 (3d Cir.2000)). The practical effect of a proper exculpation provision is not to provide a release for any party, but to raise the standard of liability of fiduciaries for their conduct during the bankruptcy case. See In re PWS Holding Corp., 228 F.3d at 247 (noting an exculpation provision “sets forth the appropriate standard of liability”); In" }, { "docid": "6637617", "title": "", "text": "again asserted their theory that the Houk family confiscated donated funds by using them to pay off debts in the bankruptcy proceeding. Behrmann v. Nat’l Heritage Found., 663 F.3d 704 (4th Cir.2011). The Behrmanns were partially successful on appeal. Although the Fourth Circuit rejected their “broadside” attack on the good faith of the Plan, it found that the record did not allow it to assess “whether NHF’s circumstances entitle it to the benefit of the” Release and Exculpation provisions. Id. at 710-13. Accordingly, the Fourth Circuit vacated the district court’s decision affirming the Release and Exculpation provisions and remanded the case to allow the bankruptcy court “to set forth specific factual findings supporting its conclusions.” Id. at 713. After the case was remanded, the bankruptcy court held a status conference on March 6, 2012. Bankr.Dkt. No. 997. At that hearing, the Behrmanns’ bankruptcy counsel, Glenn Merrick, asked the court to vacate the Release and Exculpation provisions in light of the Fourth Circuit’s decision. Id. Concerned about the prospect of “piecemeal” litigation, the bankruptcy court asked Merrick directly whether or not the Behrmanns would “run off to state court and sue” the Houk family if it granted his request. Bankr.Dkt. No. 1047 at 14-17. Merrick replied, “[N]o, there is no plan or intent to go file an action against [NHF’s] principals prior to this court ruling. That’s the direct answer to your question.” Id. Merrick later reported this exchange to Mr. Behrmann, as well as to appellants Miller and Schendzielos. Bankr.Dkt. No. 1064. Despite Merrick’s response, on June 28, 2012 — while the bankruptcy court was still considering the remanded issues and without first seeking leave to lift the automatic stay or leave to file a civil action against the debtor — Miller and Schendzielos filed suit on behalf of the Behrmanns against several defendants, including both NHF and the Houk family in the Central District of California. Behrmann v. Goldstein, No. 2:12cv5636 DMG/CW, 2012 WL 5054636 (C.D.Cal. June 28, 2012) (“California Action”); see also Bankr.Dkt. No. 1043-2 (“Original Complaint”). Among the claims in the Original Complaint were allegations that the" }, { "docid": "13268445", "title": "", "text": "Release Provision is unenforceable, we find no error in that judgment. . Relying on Henry A. Knott, Co. v. Chesapeake & Potomac Telephone Co. of West Virginia, 772 F.2d 78 (4th Cir.1985), NHF argues that the district court should have reviewed the bankruptcy court's factual findings on remand de novo. In Henry A. Knott, we held that a de novo hearing may be required before a successor judge \"if the case requires the trier of fact to make credibility determinations concerning the testimony of witnesses.” Id. at 85. Here, however, there was only one witness, Janet Ridgely, and her credibility was not in dispute. Rather, both courts simply found her testimony insufficient to support the Release Provision even if fully credited. Given this, we see no reason why the district court was required to depart from the general rule that the bankruptcy court’s \"[findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous.” Fed. R. Bankr.P. 8013. . The departure of Dr. John T. Houk, NHF’s former CEO, seems to belie such a claim. . We recognize that the Behrmanns, the ap-pellees in this case, filed a fraud action against NHF and its officers and directors, notwithstanding a stay leaving the Release Provision in effect. But the mere fact that a single donor suit has been filed does not establish that NHF will face a flood of litigation without the Release Provision. We also note that the district court ordered the dismissal of the Behrmanns’ action and required them to pay attorney’s fees to NHF. See In re Nat’l Heritage Found., Inc., 510 B.R. 526, 539-42, 549-52 (E.D.Va.2014). . Appellees argue that NHF has waived argument with respect to the last three Dow Coming factors because it did not address them below. As NHF would not prevail on the merits anyway, we need not resolve this question." }, { "docid": "10698390", "title": "", "text": "does not purport to release any pre-petition claims against the officers or directors. Further, as Judge Mitchell noted, there is a “gatekeeper” function built into Section 7.21, in that Section 7.21 expressly allows for suits against the Released Parties if the claimant “obtains the prior approval of the Bankruptcy Court to bring such a claim.” Order Confirming Fourth Am. Plan of Reorganization, Docket No. 687, p. 28. The Court finds that the Exculpation Provision of Section 7.21: (a) is narrowly tailored to meet the needs of the bankruptcy estate; (b) is limited to parties who have performed necessary and valuable duties in connection with the case (excluding estate professionals); (c) is limited to acts and omissions taken in connection with the bankruptcy case; (d) does not purport to release any pre-petition claims; and (e) contains a gatekeeper function by which the Court may, in its discretion, permit an action to go forward against the exculpated parties. The Court will not disturb the Exculpation Provisions of Section 7.21. III. The Injunction Provisions (Section 7.20). The Injunction Provisions of Section 7.20 give effect to both the Release Provisions of Section 7.19 and the Exculpation Provisions of Section 7.21. For the reasons stated in Parts I and II above, the Court will approve the Injunction Provisions insofar as they enforce the Section 7.21 Exculpation Provisions. The Court will not enforce the Injunction Provisions to the extent that they give effect to the Release Provisions of Section 7.19 of the Plan. Conclusion The Court finds that the record in this case does not support the Release Provisions of Section 7.19. The Court finds that the record in the case does support the Exculpation Provisions of Section 7.21. Finally, the Court finds that the record supports the Injunction Provisions of Section 7.20, insofar as they purport to enforce the Exculpation Provisions of Section 7.21, but not as they relaté to the Release Provisions of Section 7.19. An appropriate Order will issue. . The Third Amended Disclosure Statement (hereinafter, \"Third Am. Disci. St.”) is found at Docket No. 578. It was conditionally approved by this Court" }, { "docid": "6637645", "title": "", "text": "Plan. See Bankr.Dkt. No. 665 at Section 12.2 (“Severability”); see also Behrmann, 663 F.3d at 714 (stating that “the Confirmed Plan expressly provides that any clause may be severed should it be determined to be unenforceable, which suggests that the plan would remain viable absent” the Release and Exculpation provisions.). At the hearing before the bankruptcy court on the Motion for Contempt, the Behrmanns’ bankruptcy counsel also acknowledged that the Fourth Circuit did not vacate the Confirmation Order in its entirety. Bankr.Dkt. No. 1063 at 68-69. The appellants’ views of what was at issue in their appeal before the Fourth Circuit are disingenuous. The Fourth Circuit clearly defined the appeal as one addressing “the circumstances under which a bankruptcy court may approve nondebtor release, injunction and exculpation provisions as part of a final plan of reorganization under Chapter 11 of the Bankruptcy Code.” Behrmann, 663 F.3d at 706 (emphasis added); see also id. at 710 (concluding that “the bankruptcy court erred in entering an order approving the Release Provisions as part of the Confirmed Plan, and the district court erred in affirming that order insofar as it included the Release Provisions ” (emphasis added)); id. at 713 (reasoning that “[bjecause the present record does not allow us to assess ... whether NHF’s circumstances entitle it to the benefit of the Release Provisions, we must vacate the district court’s judgment and remand the case to allow the bankruptcy court ... to set forth specific factual findings supporting its conclusions”). As observed by the bankruptcy court and argued by NHF, the Fourth Circuit expressly acknowledged that under the Plan’s severability clause, the infirmity or unenforceability of any one provision did not affect the viability of any other provision. Id. at 714. Given the language of the Fourth Circuit’s decision alone, it is clear that the bankruptcy court correctly found that only two portions of the Confirmation Order, the Release and Exculpation provisions, had been vacated. Moreover, because it is uncontested that only those two provisions were challenged by the Behrmanns on appeal, appellants’ argument that the Fourth Circuit’s decision somehow vacated the" }, { "docid": "10698386", "title": "", "text": "the circumstances of this case. II. The Exculpation Provisions (Section 7.21). Section 7.21 provides for exculpation for the Released Parties (defined in Section 7.19) for any acts or omissions in connection with the bankruptcy case, the Disclosure Statement, or the Plan of Reorganization. This provision is less offensive than the Release Provisions of Section 7.19 of the Plan. Judge Mitchell approved the Exculpation Provisions at the confirmation hearing, stating: I don’t think the exculpation provision goes really beyond the protection that a Chapter 7 trustee or Chapter 11 trustee would have. Under the Barton Rule [Barton v. Barbour, 104 U.S. 126, 26 L.Ed. 672 (1881) ], you can’t bring a suit against a trustee for matters connected with the administration of the estate without getting the permission of the court that appointed the trustee.... So, I don’t believe it is at all unreasonable to effectively make this court the gatekeeper as to whether suits can be brought against parties for carrying out the duties that would be imposed on a trustee had a trustee been appointed in this case. Tr. II, pp. 14_15. The Fourth Circuit recently re-visited the Barton doctrine in McDaniel v. Blust, 668 F.3d 153 (4th Cir.2012). In McDaniel, the Court affirmed the dismissal of claims against a Chapter 7 trustee's counsel under the Barton doctrine, which requires leave of court before a receiver or a bankruptcy trustee (and now, it is clear, his or her professionals) can be sued. Id. The Court affirmed the dismissal of claims against the trustee's counsel, holding that the allegations made by the plaintiffs \"can be considered by the bankruptcy court in its role as gatekeeper.\" Id. at 157. McDaniel, while not directly on point here, lends support to Judge Mitchell's approval of the Exculpation Provisions from the standpoint of the Bankruptcy Court as gatekeeper. See also In re Vistacare Group, LLC, 678 F.3d 218 (3d Cir.2012) (confirming the continued validity of the Barton doctrine). Exculpation provisions of this kind find their genesis in Section 1103(c) of the Bankruptcy Code, at least insofar as Committee members are concerned. They generally are" }, { "docid": "6637613", "title": "", "text": "been provided.” Id. NHF objected to the Behrmanns’ claims. On October 13, 2009, NHF proposed its Fourth Amended and Restated Plan of Reorganization of the Debtor (“Plan”) that included the sections that are relevant to these appeals. Section 7.19 released NHF’s officers and directors, including the Houk family, from any claims relating to their actions before NHF filed for bankruptcy protection (the “Release Provision”). Bankr.Dkt. No. 665. Section 7.21 required that any claims against NHF’s officers and directors, again including the Houk family, for actions relating to their conduct in the bankruptcy proceeding, be approved in advance by the bankruptcy court (the “Exculpation Provision”). Id. Lastly, section 7.18 discharged claims against NHF for activity occurring before the Plan’s effective date; that is, October 16, 2009, which is the date of the bankruptcy court’s order confirming the Plan (the “Discharge Provision”). Id. The Behrmanns objected to confirmation of the Plan, challenging its “good faith” and arguing that [tjhis reorganization evidences a concerted effort by the Houk family to patch and continue — for the family’s collective benefit and profit — reprehensible practices of soliciting charitable donations via ruse and deception.... [C]en-tral to [NHF’s] fraudulent “business” is the solicitation of charitable donations based upon material misrepresentations and omissions. Bankr.Dkt. No. 585. On October 16, 2009, the bankruptcy court confirmed the Plan over the Behrmanns’ objection after a hearing in which the Behrmanns and their bankruptcy counsel participated. Bankr. Dkt. No. 687 (“Confirmation Order”). In the Confirmation Order, the bankruptcy court found that the Plan had been proposed in good faith. Id. The Confirmation Order included the Release, Exculpation, and Discharge provisions discussed above. Id. On October 23, 2009, the Behrmanns appealed the Confirmation Order to the district court, explicitly challenging the good faith of NHF and the Houk family in proposing the Plan and, specifically, the propriety of the Release and Exculpation provisions. Behrmann v. Nat’l Heritage Found., Inc., No. 1:10cv40 CMH/IDD (E.D.Va. 2010). On November 13, 2009, while that appeal was pending, the Behrmanns moved for a stay of the Confirmation Order to enable them to file a civil complaint against" }, { "docid": "13096211", "title": "", "text": "(collectively, the “Release Provisions”) that prevented potential claimants from asserting claims against NHF, the Official Committee of Unsecured Creditors (the “Committee”), and other parties closely connected with NHF or the Committee, such as NHF’s officers and directors, that accrued on or before the effective date of the reorganization plan. At a hearing before the bankruptcy court, NHF representative Janet Ridgely testified that the Release Provisions were essential to NHF’s successful reorganization as a going concern. Specifically, Ridgely asserted that (1) NHF’s proposed plan of reorganization and bylaws required NHF to indemnify its officers and directors for costs, expenses, and liabilities arising out of lawsuits filed against them relating to acts taken in their official capacities; (2) NHF’s officers and directors were concerned about the possibility of protracted litigation against them relating to acts predating NHF’s petition for bankruptcy, and in particular litigation initiated by donors; (3) NHF’s officers and directors might be unwilling to continue to serve after confirmation of NHF’s proposed plan of reorganization if third parties could sue them for their pre-petition conduct; and (4) retaining NHF’s officers and directors was essential to NHF’s success as a reorganized debtor. The bankruptcy court, however, declined to approve the Release Provisions, concluding that they were overly broad. NHF’s counsel subsequently filed revisions to the Release Provisions that (1) narrowed the definition of “Released Parties” to include only NHF, the Committee, any designated representatives of the Committee, and any officers, directors, or employees of NHF, the Committee, or their successors and assigns (the “Released Parties”); (2) exculpated the Released Parties only with respect to claims brought by parties in interest that had filed a proof of claim or were given notice of NHF’s bankruptcy proceeding, and then only for acts or omissions arising out of the operation of NHF’s business through the effective date of the reorganization plan; and (3) explicitly provided that no parties would be released from liability stemming from NHF’s failure to comply with its obligations under the reorganization plan. Following argument, the bankruptcy court approved the Release Provisions as amended and confirmed NHF’s plan of reorganization (hereafter," } ]

[ { "docid": "21860948", "title": "", "text": "146 N.Y.S.2d 808 (1st Dept. 1955); Brandt v. Winchell, 283 App.Div. 338, 127 N.Y.S.2d 865 (1st Dept. 1954). “The mere fact that a series of tortious acts is part of a plan or scheme does not change the character of the liability or remedy, for traditional relief may, nevertheless, be available.” Ruza v. Ruza, supra, 286 App.Div. at 769, 146 N.Y.S.2d at 810. See also Original Ballet Russe v. Ballet Theatre, 133 F.2d 187, 189 (2d Cir. 1943). The tort of inducing or causing to induce a breach of contract is an old one in the law. The acts alleged in paragraphs 32(a), (b), (c) of the sixth cause of action and the entire seventh cause of action amount to no more than alleging this traditional tort. The use of the words “maliciously” and “intentionally inflict financial harm” by the pleader adds nothing to the theory upon which recovery is sought. The question then is whether a good cause of action for inducing breach of contract has been pleaded against the individual defendants. An employee is not liable in tort for procuring a breach of his employer’s contract if he acts within the scope of his employment. Greyhound Corp. v. Commercial Cas. Ins. Co., 259 App.Div. 317, 19 N.Y.S.2d 239 (1st Dept. 1940). And a conspiracy cannot be charged because the employee and the corporation in such cases are not separate entities. Bereswill v. Yablon, 6 N.Y.2d 301, 189 N.Y.S.2d 661, 160 N.E.2d 531 (1959). Only in cases of individual torts such as assault, trespass, conversion, etc. may the employee be held liable. Buckley v. 112 Central Park South, Inc., 285 App.Div. 331, 136 N.Y.S.2d 233 (1st Dept. 1954). The court there indicated that the problem is not a simple one. A clear example is where the employee is charged with converting goods to his own use and thereby causing a breach of contract. Navarro v. Fiorita, 271 App.Div. 62, 62 N.Y.S.2d 730 (1st Dept. 1946), aff’d, 296 N.Y. 783, 71 N.E.2d 468 (1947). It appears from the eases that the charge must be that the acts of the employee" } ]

[ { "docid": "17816528", "title": "", "text": "II alleged a similar claim for relief, on behalf of Bailey individually. Count III, a pendent claim for relief on behalf of Bailey individually, alleged that defendants had conspired to commit and committed the common law tort of intentional interference with Bailey’s contractual right of first refusal and sought damages therefor. Judge McLaren, in Bailey I, made findings of fact after trial which will be referred to in some detail later. On the derivative count I, he concluded that Continental and Foster had violated Rule 10b-5 and were liable to the Black Company therefor. However, he refused to award damages on that count. Count II of the complaint was dismissed and no appeal has been taken from that dismissal. On count III of the complaint, Judge McLaren concluded that Foster and Continental, individually and as executor, acted in concert with Meister Brau and intentionally interfered with and induced a breach of Bailey’s contractual right of first refusal to purchase the Black Company shares. He found that Bailey had been damaged in the sum of $214,336.20 and that Continental and Foster were liable to Bailey in that amount. In a supplementary opinion, Bailey II, the court determined that Bailey was entitled to $50,000 in attorneys’ fees and $27,339.90 in expenses of litigation against Continental and Foster on Count I. It also awarded Bailey $19,094.68 as costs. Foster settled with Bailey prior to the entry of judgment. Judgment against Continental was duly entered. On this appeal Continental does not challenge the findings of fact made by the court below. With respect to count I, it contends (a) that upon the facts in the record it is not liable to the Black Company as a matter of law, and (b) that, in any event, the court below was in error in awarding attorneys’ fees and expenses of litigation to Bailey on that count. As to count III, Continental contends that as a matter of law it is not liable to Bailey for inducing breach of contract, either individually or as executor, and that, in any event, the damages awarded were incorrectly computed and" }, { "docid": "17816529", "title": "", "text": "and that Continental and Foster were liable to Bailey in that amount. In a supplementary opinion, Bailey II, the court determined that Bailey was entitled to $50,000 in attorneys’ fees and $27,339.90 in expenses of litigation against Continental and Foster on Count I. It also awarded Bailey $19,094.68 as costs. Foster settled with Bailey prior to the entry of judgment. Judgment against Continental was duly entered. On this appeal Continental does not challenge the findings of fact made by the court below. With respect to count I, it contends (a) that upon the facts in the record it is not liable to the Black Company as a matter of law, and (b) that, in any event, the court below was in error in awarding attorneys’ fees and expenses of litigation to Bailey on that count. As to count III, Continental contends that as a matter of law it is not liable to Bailey for inducing breach of contract, either individually or as executor, and that, in any event, the damages awarded were incorrectly computed and excessive. Finally, it contends the court below was in error in its computation of taxable costs. Count III Since the major portion of the liability imposed on Continental by the judgment below is based on count III of the complaint, we first deal with that count. Continental does not question (1) that, under the terms of his 1966 employment contract, Bailey had a 60-day right of first refusal of Meister Brau’s offer to purchase the shares of the Black Company held by the Black, Sr. estate; (2) that the sale of the Black estate stock to Meister Brau on June 6, 1969 without Bailey’s knowledge or consent destroyed his contractual right of first refusal; and (3) that Continental, through its officers Schaeffer and Mullen, with full knowledge of Bailey’s contract rights and induced by Meister Brau’s offer of indemnity acted in concert with Meister Brau and Foster and brought about the destruction of Bailey's right of refusal. The findings of the court below to this effect are supported by the evidence. On the basis of" }, { "docid": "17816543", "title": "", "text": "does it question the court’s finding that the consideration given by Meister Brau for the Black Company stock after negotiation was the best evidence of its value. Continental questions only the finding as to the amount of such consideration. The court below found that the cost to Meister Brau of the 95.7% of the Black Company stock which it purchased from the Black estate and Mrs. Harre was $1,050,000. This figure represented the sum of $950,000 actually paid by Meister Brau plus $100,000 as the value of the indemnity provided by Meister Brau to the estate, Continental, Foster, Schaeffer and Mr. and Mrs. Harre for closing the transaction. By providing such indemnity, Meister Brau in effect assumed a substantial liability of the sellers and this was additional consideration for the purchase. Meister Brau had calculated its maximum exposure under the indemnity to be $180,000. The court below appropriately discounted that figure and found that the value of this additional consideration for the purchase was $100,000. Continental contends that the $100,-000 indemnity figure should not have been included in the calculation of the purchase price because it was made necessary by Bailey’s own conduct and was not a part of the negotiated and agreed upon price. Continental’s argument misses the mark. The indemnification agreement was not made necessary by Bailey’s own conduct, as we have already indicated. It was necessitated by Meister Brau’s determination to acquire the Black Company in unlawful disregard of Bailey’s known right of first refusal, and was plainly a part of the consideration which the sellers required Meister Brau to pay for the Black Company shares. The value of the additional consideration provided by the indemnity agreement, as found by the court, was not arbitrary, as Continental claims, but was reasonable and supported by the record. Continental’s other arguments as to count III damages require little discussion. Contrary to Continental’s contention, Bailey’s loss of wages, bonuses, and pensions payable under his contract with the Black Company, as well as his loss of fees from an outside directorship was a direct conse quence of the actions of the" }, { "docid": "17816564", "title": "", "text": "(2d Cir.), cert. denied, 349 U.S. 952, 75 S.Ct. 880, 99 L.Ed. 1277 (1955); Electronic Specialty Co. v. International Controls Corp., 47 F.R.D. 158, 162 (S.D.N.Y.1969); 6 J. Moore, Federal Practice ¶ 54.77[4], at 1720-21 (2d Ed. 1975). The judgment appealed from insofar as it awards attorneys’ fees of $50,000 and litigation expenses of $24,339.90 to plaintiff Bailey is reversed, and in all other respects is affirmed. . Earlier opinions of the district court in the case are reported in Bailey v. Meister Brau, Inc., 320 F.Supp. 539 (N.D.Ill.1970) and 55 F.R.D. 211 (N.D.Ill.1972). . 17 C.F.R. § 240.10b-5. . 15 U.S.C. § 78j(b). . 15 U.S.C. § 77q(a). . Bailey had dismissed his claims against Mrs. Harre, Mr. Harre and Berry before trial. Meister Brau, Inc. was severed from the case prior to trial because of an order in a proceeding under Chapter XI of the Bankruptcy Act enjoining suits against it. Meister Brau, Inc. was adjudicated a bankrupt on February 15, 1973. The court found defendants Cappadocia, Schaeffer, Mullen, Mrs. Black and Black, Jr. not liable on any of the counts and dismissed as to them. Bailey did not appeal from that dismissal. . The court set forth the well-established elements of this tort of intentional interference with contractual relations or inducing breach of contract, as follows: (1) the defendants’ knowledge of the contract between plaintiff and the third party, (2) defendants’ unjustified inducement of the third party to breach or otherwise render impossible the performance of the contract, (3) the subsequent breach or other such act by the third party, and (4) damage to plaintiff. See e. g., Mellor v. Budget Advisors, Inc., 415 F.2d 1218, 1221 (7th Cir. 1969); Republic Gear Co. v. Borg-Warner Corp., 406 F.2d 57, 61 (7th Cir.), cert. denied, 394 U.S. 1000, 89 S.Ct. 1596, 22 L.Ed.2d 777 (1969); General Capital Corp. v. U. S. Family Sporting Goods, Inc., 351 F.Supp. 364, 367 (N.D.Ill. 1972). Bailey I, supra, at 877. . The court below cited Frank Rosenberg, Inc. v. Carson Pine Scott & Co., 28 Ill.2d 573, 583-584, 192 N.E.2d 823, 829" }, { "docid": "17816531", "title": "", "text": "these findings, the court concluded that Continental and Foster had combined with Meister Brau to unlawfully interfere with Bailey’s right of first refusal and are therefore liable to him jointly and severally for the consequences of their tortious acts. Bailey I, supra, at 880. Continental takes the position that it cannot, as a matter of law, be held liable for the tort of inducing breach of contract on the basis of these findings for several reasons. A. Continental's principal contention is that Bailey had engaged in a course of conduct which constituted such a serious breach of his employment contract with the Black Company that it justified Continental and its collaborators in denying him the right of first refusal which that contract provided. The court below found that Bailey’s conduct did not constitute a breach of his employment agreement (even assuming that such a breach would terminate his right of first refusal) or provide justification for interference with his contractual rights. Bailey I, supra, at 879. Continental argues that the district court’s holding to this effect was erroneous as a matter of law. We see no merit in this contention. Quite understandably, friction developed between Bailey and Meister Brau, particularly after Cappadocia, Meister Brau’s designee, displaced him as president of the Black Company. As the court below pointed out, the situation at the plant was tense between May 16, 1969, when the displacement occurred, and June 6, 1969, when Meister Brau’s purchase was consummated and Bailey was discharged. It was accentuated by Cappadocia’s action in taking Bailey’s credit cards and company car keys away from him and in not assigning him any work. During this period, Bailey was making continuing efforts to meet the Meister Brau offer, as he had a right to do, and expected to be able to acquire the Black estate stock and control the Company himself. He certainly cannot be criticized for informing employees and prospective purchasers that this was what he intended to do. Plainly, as the pressures increased Bailey indulged in some unwise and loose talk as to what he might do if he" }, { "docid": "12428136", "title": "", "text": "less, as contrasted with the alleged value of the Black Company as a going concern, said by plaintiff to be $1,870,000. The complaint alleges that the Continental Bank, Meister Brau, the directors of the Black Company and others conspired to interfere with his contractual rights and to defraud him. He further alleges a conspiracy to defraud the Black Company in violation of the federal security laws and, as a shareholder, asserts a derivative action on behalf of the Black Company. It is clear that plaintiff’s claims based upon the 1966 Black-Bailey contract do not constitute a federally cognizable cause of action sounding in contract. Unless the facts alleged support the allegations of violations of Section 17(a) of the Securities Act of 1933 and Rule 10b-5 of the Securities Exchange Commission, there would appear to be no federal jurisdiction. It is plaintiff’s position that he has asserted a cause of action in either or both of Counts I and II cognizable under the federal security laws and supportive of federal jurisdiction, thus giving this court jurisdiction over the remaining count or counts under the doctrine of pendant jurisdiction. Defendants contend that neither Count I nor II states a federally cognizable cause of action, but rather are contrived to bring plaintiff’s suit, on his alleged contract right to purchase Black stock, into the federal court. Count I is a derivative action alleging that the Black Company was fraudulently induced to transfer assets worth $1,-870,000 for 70,000 shares of Meister Brau stock worth $440,000. It is alleged that this was accomplished by means of a conspiracy among the defendants to defraud and deceive the Black Corporation and that the actions of the conspirators and the result they accomplished were in violation of Section 17(a) of the Securities Act, 15 U.S.C. Sec. 77q(a); Section 10(b) of the Exchange Act, 15 U.S.C. Sec. 78j(b); and Rule 10b-5 of the Securities and Exchange Commission. Defendants argue that the cause of action set out in the complaint cannot constitute a violation of the 1933 or 1934 Securities Acts, or the rules thereunder, since the sections alleged to" }, { "docid": "17816539", "title": "", "text": "contract resulting in actual damage. 282 N.E. at 214. Cases in the federal courts applying Illinois law support the Blivas position, National Gas Appliance Corp. v. Manitowoc Co., 311 F.2d 896 (7th Cir. 1962); Burton v. Hitachi America, Ltd., 504 F.2d 721 (7th Cir. 1974), which is in accord with the view of well reasoned decisions in other jurisdictions. See, e. g., Wade v. Culp, 107 Ind. App. 503, 23 N.E.2d 615 (1939) (en banc); Falstaff Brewing Corp. v. Iowa Fruit & Produce Co., 112 F.2d 101 (8th Cir. 1940); Wise v. Southern Pacific Co., 223 Cal. App.2d 50, 35 Cal.Rptr. 652 (1963); Luke v. Dupree, 158 Ga. 590, 124 S.E. 13 (1924). Even were Illinois law otherwise, Continental cannot escape liability for combining with others to breach Bailey’s right of first refusal under the facts in this case. The agreement granting that right was between the Black Company and Bailey and was enforceable against the Black estate, which held the controlling shares to be offered. As the court below pointed out, Continental “was not a party to the agreement in the normal sense. The estate, not the Bank, is named in the right of first refusal.” Bailey I, supra, at 878. Through its officers, Continental played an active part in bringing about the breach of Bailey’s first refusal right and received inducement from Meister Brau in the form of indemnification against liability for its part in the transaction. Having thus actively participated in bringing about a breach of a provision of a contract between Bailey, the Black Company, and the Black estate — to which it was not a party — Continental was liable to Bailey for the tort of unlawfully interfering with his contractual rights. Cf. General Capital Corp. v. U. S. Family Sporting Goods, Inc., supra. D. The Court below awarded Bailey damages of $214,336.20 on count III. Continental challenges the amount of damages awarded on several grounds. The damages awarded consisted of (1) the value of the interest in the Black Company which Bailey would have acquired had he not been prevented from exercising his right" }, { "docid": "17816527", "title": "", "text": "for $950,000, but advised him that the Black Company’s only assets were the unregistered Meister Brau stock. Bailey rejected the offer. Bailey then commenced the present action, naming as defendants Continental, individually and as executor of the Black estate; Foster; Meister Brau, Inc.; Mullen and Schaeffer, officers of Continental who had represented Continental in the transactions at issue; Cappadocia; Mr. and Mrs. Harre; James H. Black, Jr., and Mrs. Black, Sr., heirs of the Black estate; Berry, the new treasurer of the Black Company; and the Black Company. The complaint set forth three claims for relief. Count I, a derivative claim brought by Bailey as minority stockholder of the Black Company, alleged that the defendants had defrauded the Black Company by exchanging all the Black Company assets for the much less valuable unregistered Meister Brau stock in violation of SEC Rule 10b-5, Section 10(b) of the Securities Exchange Act of 1934, and Section 17(a) of the Securities Act of 1933. It sought rescission or damages in favor of the Black Company, the nominal defendant. Count II alleged a similar claim for relief, on behalf of Bailey individually. Count III, a pendent claim for relief on behalf of Bailey individually, alleged that defendants had conspired to commit and committed the common law tort of intentional interference with Bailey’s contractual right of first refusal and sought damages therefor. Judge McLaren, in Bailey I, made findings of fact after trial which will be referred to in some detail later. On the derivative count I, he concluded that Continental and Foster had violated Rule 10b-5 and were liable to the Black Company therefor. However, he refused to award damages on that count. Count II of the complaint was dismissed and no appeal has been taken from that dismissal. On count III of the complaint, Judge McLaren concluded that Foster and Continental, individually and as executor, acted in concert with Meister Brau and intentionally interfered with and induced a breach of Bailey’s contractual right of first refusal to purchase the Black Company shares. He found that Bailey had been damaged in the sum of $214,336.20" }, { "docid": "17816536", "title": "", "text": "Bailey never asserted. It urges that recovery on a tort theory in this case is impermissible, and that the judgment against Continental on count III must therefore be reversed. Bailey was granted the right of first refusal under his employment contract with the Black Company, entered into on July 1, 1966. The contract was executed by James H. Black, Sr. on behalf of the Black Company, as chairman of the board, and by Bailey on his own behalf. The first refusal clause provided that [T]he sellers of the majority of the shares of the common stock of the Company (whether Black or his estate or heirs) shall give to Bailey a sixty (60) day right of first refusal to meet any offer to purchase such shares. Notice to Bailey shall be in writing, postage prepaid, certified or registered mail, and shall contain a bona fide copy of the offer which must be in writing. Black, Sr. did not sign the contract in his individual capacity, nor did anyone do so on his behalf. The court below held that the right of first refusal clause was valid and enforceable and Continental does not challenge that holding. The court below rejected Continental’s contention that under Illinois law a party to a contract may not be held liable to another contracting party for combining with others to induce a breach. It held that even if Continental were considered a party to the contract granting the right of first refusal, it was liable in tort since it had conspired with others to bring the breach. In our view this holding was correct. Staté jurisdictions are in disagreement as to whether one contracting party may recover against another for conspiring with third persons to breach the contract. Some jurisdictions hold that the only remedy the injured contracting party has under such circumstances is for breach of contract. In other jurisdictions a party to a contract who conspires with others to breach the contract is liable to the other contracting party in tort for so doing. See 16 Am.Jur.2d Conspiracy § 50, at 152-53 (1964); 15A" }, { "docid": "17816535", "title": "", "text": "Piff v. Berresheim, 405 Ill. 617, 92 N.E.2d 113, 117 (1950); Schmidt v. Kellner, 307 Ill. 331, 138 N.E. 604, 606 (1923). C. On count III the court below found that Continental had combined with Foster and Meister Brau to interfere intentionally with and destroy Bailey’s contractual right of first refusal, and held it was therefore liable to Bailey for the damages suffered as a consequence of its tortious acts. As we have indicated, Continental does not challenge the court’s finding of fact. Nevertheless, it contends that as executor of the Black Sr. estate it was a party to the contract with Bailey which granted him the right of first refusal and that, under Illinois law, a party to a contract may not be held liable in tort to another contracting party for combining with third parties to bring about a breach of that contract. In such circumstances, Continental argues, the only remedy which the injured party has against the other party to the contract in Illinois is a claim for breach of contract, which Bailey never asserted. It urges that recovery on a tort theory in this case is impermissible, and that the judgment against Continental on count III must therefore be reversed. Bailey was granted the right of first refusal under his employment contract with the Black Company, entered into on July 1, 1966. The contract was executed by James H. Black, Sr. on behalf of the Black Company, as chairman of the board, and by Bailey on his own behalf. The first refusal clause provided that [T]he sellers of the majority of the shares of the common stock of the Company (whether Black or his estate or heirs) shall give to Bailey a sixty (60) day right of first refusal to meet any offer to purchase such shares. Notice to Bailey shall be in writing, postage prepaid, certified or registered mail, and shall contain a bona fide copy of the offer which must be in writing. Black, Sr. did not sign the contract in his individual capacity, nor did anyone do so on his behalf. The court" }, { "docid": "17816538", "title": "", "text": "C.J.S. Conspiracy § 13, at 640 (1967); and cases there cited. Illinois authority on this question takes the latter view, to the effect that a party to a contract is liable to another contracting party in damages for conspiring with others to bring about a breach of the contract. In Blivas and Page, Inc. v. Klein, 5 Ill. App.3d 280, 282 N.E.2d 210 (1972), defendants Klein and Page appealed from a judgment entered on a jury verdict based on a single count alleging breach of an oral agreement by Klein to retain plaintiff’s architectural firm on a housing project, wrongful inducement of the breach by Kay, and conspiracy between Klein and Kay to induce the breach. The Appellate Court of Illinois in affirming the judgment against both defendants insofar as it awarded actual damages to the plaintiff stated: While it is true that a party cannot be sued in tort for inducing the breach of his own contract, he can be sued for conspiracy with a third person who has induced him to breach his contract resulting in actual damage. 282 N.E. at 214. Cases in the federal courts applying Illinois law support the Blivas position, National Gas Appliance Corp. v. Manitowoc Co., 311 F.2d 896 (7th Cir. 1962); Burton v. Hitachi America, Ltd., 504 F.2d 721 (7th Cir. 1974), which is in accord with the view of well reasoned decisions in other jurisdictions. See, e. g., Wade v. Culp, 107 Ind. App. 503, 23 N.E.2d 615 (1939) (en banc); Falstaff Brewing Corp. v. Iowa Fruit & Produce Co., 112 F.2d 101 (8th Cir. 1940); Wise v. Southern Pacific Co., 223 Cal. App.2d 50, 35 Cal.Rptr. 652 (1963); Luke v. Dupree, 158 Ga. 590, 124 S.E. 13 (1924). Even were Illinois law otherwise, Continental cannot escape liability for combining with others to breach Bailey’s right of first refusal under the facts in this case. The agreement granting that right was between the Black Company and Bailey and was enforceable against the Black estate, which held the controlling shares to be offered. As the court below pointed out, Continental “was not" }, { "docid": "17816526", "title": "", "text": "Meister Brau for liability or loss arising out of its acquisition of the Black Company shares; and (6) Meister Brau agreed not to sell, pledge, or mortgage any Black Company assets (which now consisted solely of Meister Brau stock) as long as it remained indebted to Continental as executor on a note given in partial payment for the Black Company stock. Bailey, who had remained as principal operating officer of the Black Company subsequent to his demotion as president, treasurer, and director on April 16, was then discharged “for cause” by the Black Company acting through Cappadocia as its president. On June 9, 1969 Bailey, who had arranged financing of the purchase of the Black Company shares, advised Continental that he had elected to match the terms of .the Meister Brau offer, and tendered a cashier’s check for $25,000 on account. Continental advised Bailey that the estate had already sold its stock to Meister Brau, but refused to discuss the terms of sale. Meister Brau then offered to sell its Black Company stock to Bailey for $950,000, but advised him that the Black Company’s only assets were the unregistered Meister Brau stock. Bailey rejected the offer. Bailey then commenced the present action, naming as defendants Continental, individually and as executor of the Black estate; Foster; Meister Brau, Inc.; Mullen and Schaeffer, officers of Continental who had represented Continental in the transactions at issue; Cappadocia; Mr. and Mrs. Harre; James H. Black, Jr., and Mrs. Black, Sr., heirs of the Black estate; Berry, the new treasurer of the Black Company; and the Black Company. The complaint set forth three claims for relief. Count I, a derivative claim brought by Bailey as minority stockholder of the Black Company, alleged that the defendants had defrauded the Black Company by exchanging all the Black Company assets for the much less valuable unregistered Meister Brau stock in violation of SEC Rule 10b-5, Section 10(b) of the Securities Exchange Act of 1934, and Section 17(a) of the Securities Act of 1933. It sought rescission or damages in favor of the Black Company, the nominal defendant. Count" }, { "docid": "17816534", "title": "", "text": "conduct did not constitute a breach of his employment contract or justify Continental’s interference with his contractual rights is supported by the evidence and cannot be said to be erroneous. The court below was not in error in rejecting Continental’s defense of justification. B. Continental next contends that it was error to enter judgment on count III against it both individually and as executor of the Black estate on the ground that it cannot be held liable in its individual corporate capacity for a tort committed in its capacity as executor. It is well settled that the law is otherwise: The trustee is subject to personal liability to third persons for torts committed in the course of the administration of the trust to the same extent that he would be liable if he held the property free of trust. Restatement of the Law, Second, Trusts, § 264 (1959). See also 3 A. Scott, The Law of Trusts, § 264 (3d ed. 1967); G. Bogert, The Law of Trusts and Trustees, § 731 (2d ed. 1960); Piff v. Berresheim, 405 Ill. 617, 92 N.E.2d 113, 117 (1950); Schmidt v. Kellner, 307 Ill. 331, 138 N.E. 604, 606 (1923). C. On count III the court below found that Continental had combined with Foster and Meister Brau to interfere intentionally with and destroy Bailey’s contractual right of first refusal, and held it was therefore liable to Bailey for the damages suffered as a consequence of its tortious acts. As we have indicated, Continental does not challenge the court’s finding of fact. Nevertheless, it contends that as executor of the Black Sr. estate it was a party to the contract with Bailey which granted him the right of first refusal and that, under Illinois law, a party to a contract may not be held liable in tort to another contracting party for combining with third parties to bring about a breach of that contract. In such circumstances, Continental argues, the only remedy which the injured party has against the other party to the contract in Illinois is a claim for breach of contract, which" }, { "docid": "17816533", "title": "", "text": "were unable to obtain control of the Black Company. But, as the court below pointed out, though Bailey’s conduct may not have been without fault, “it was no worse than might be expected of any person in that situation. . . \" Bailey I, supra, at 879. There was no showing that any harm was done to the Black Company by Bailey’s conduct. Moreover, much of Bailey’s conduct, which Continental attacks, was not known to Continental until after it had chosen to accept the accelerated Meister Brau offer. The question of whether an interference with contractual rights is justified is basically a question of fact which is resolved by inquiring into the “good faith” of the party inducing the breach of contract. See American Surety Co. v. Schottenbauer, 257 F.2d 6, 12-13 (8th Cir. 1958); Mellor v. Budget Advisors, Inc., supra, at 1221. The court below made such an inquiry and carefully considered the evidence as to both Bailey’s and the Bank’s conduct, including their own explanations of what had occurred. Its finding that Bailey’s conduct did not constitute a breach of his employment contract or justify Continental’s interference with his contractual rights is supported by the evidence and cannot be said to be erroneous. The court below was not in error in rejecting Continental’s defense of justification. B. Continental next contends that it was error to enter judgment on count III against it both individually and as executor of the Black estate on the ground that it cannot be held liable in its individual corporate capacity for a tort committed in its capacity as executor. It is well settled that the law is otherwise: The trustee is subject to personal liability to third persons for torts committed in the course of the administration of the trust to the same extent that he would be liable if he held the property free of trust. Restatement of the Law, Second, Trusts, § 264 (1959). See also 3 A. Scott, The Law of Trusts, § 264 (3d ed. 1967); G. Bogert, The Law of Trusts and Trustees, § 731 (2d ed. 1960);" }, { "docid": "17816530", "title": "", "text": "excessive. Finally, it contends the court below was in error in its computation of taxable costs. Count III Since the major portion of the liability imposed on Continental by the judgment below is based on count III of the complaint, we first deal with that count. Continental does not question (1) that, under the terms of his 1966 employment contract, Bailey had a 60-day right of first refusal of Meister Brau’s offer to purchase the shares of the Black Company held by the Black, Sr. estate; (2) that the sale of the Black estate stock to Meister Brau on June 6, 1969 without Bailey’s knowledge or consent destroyed his contractual right of first refusal; and (3) that Continental, through its officers Schaeffer and Mullen, with full knowledge of Bailey’s contract rights and induced by Meister Brau’s offer of indemnity acted in concert with Meister Brau and Foster and brought about the destruction of Bailey's right of refusal. The findings of the court below to this effect are supported by the evidence. On the basis of these findings, the court concluded that Continental and Foster had combined with Meister Brau to unlawfully interfere with Bailey’s right of first refusal and are therefore liable to him jointly and severally for the consequences of their tortious acts. Bailey I, supra, at 880. Continental takes the position that it cannot, as a matter of law, be held liable for the tort of inducing breach of contract on the basis of these findings for several reasons. A. Continental's principal contention is that Bailey had engaged in a course of conduct which constituted such a serious breach of his employment contract with the Black Company that it justified Continental and its collaborators in denying him the right of first refusal which that contract provided. The court below found that Bailey’s conduct did not constitute a breach of his employment agreement (even assuming that such a breach would terminate his right of first refusal) or provide justification for interference with his contractual rights. Bailey I, supra, at 879. Continental argues that the district court’s holding to this" }, { "docid": "17816532", "title": "", "text": "effect was erroneous as a matter of law. We see no merit in this contention. Quite understandably, friction developed between Bailey and Meister Brau, particularly after Cappadocia, Meister Brau’s designee, displaced him as president of the Black Company. As the court below pointed out, the situation at the plant was tense between May 16, 1969, when the displacement occurred, and June 6, 1969, when Meister Brau’s purchase was consummated and Bailey was discharged. It was accentuated by Cappadocia’s action in taking Bailey’s credit cards and company car keys away from him and in not assigning him any work. During this period, Bailey was making continuing efforts to meet the Meister Brau offer, as he had a right to do, and expected to be able to acquire the Black estate stock and control the Company himself. He certainly cannot be criticized for informing employees and prospective purchasers that this was what he intended to do. Plainly, as the pressures increased Bailey indulged in some unwise and loose talk as to what he might do if he were unable to obtain control of the Black Company. But, as the court below pointed out, though Bailey’s conduct may not have been without fault, “it was no worse than might be expected of any person in that situation. . . \" Bailey I, supra, at 879. There was no showing that any harm was done to the Black Company by Bailey’s conduct. Moreover, much of Bailey’s conduct, which Continental attacks, was not known to Continental until after it had chosen to accept the accelerated Meister Brau offer. The question of whether an interference with contractual rights is justified is basically a question of fact which is resolved by inquiring into the “good faith” of the party inducing the breach of contract. See American Surety Co. v. Schottenbauer, 257 F.2d 6, 12-13 (8th Cir. 1958); Mellor v. Budget Advisors, Inc., supra, at 1221. The court below made such an inquiry and carefully considered the evidence as to both Bailey’s and the Bank’s conduct, including their own explanations of what had occurred. Its finding that Bailey’s" }, { "docid": "17816540", "title": "", "text": "a party to the agreement in the normal sense. The estate, not the Bank, is named in the right of first refusal.” Bailey I, supra, at 878. Through its officers, Continental played an active part in bringing about the breach of Bailey’s first refusal right and received inducement from Meister Brau in the form of indemnification against liability for its part in the transaction. Having thus actively participated in bringing about a breach of a provision of a contract between Bailey, the Black Company, and the Black estate — to which it was not a party — Continental was liable to Bailey for the tort of unlawfully interfering with his contractual rights. Cf. General Capital Corp. v. U. S. Family Sporting Goods, Inc., supra. D. The Court below awarded Bailey damages of $214,336.20 on count III. Continental challenges the amount of damages awarded on several grounds. The damages awarded consisted of (1) the value of the interest in the Black Company which Bailey would have acquired had he not been prevented from exercising his right of first refusal, less the cost to Bailey of acquiring such interest; (2) the present discounted worth of the wages, bonuses, and pension rights which Bailey would have been entitled to receive from the Black Company under his contract of employment, less the present discounted worth of amounts receivable from his subsequent employment by another corporation in mitigation of damages; (3) the present discounted worth of loss of fees from an outside directorship which Bailey would have earned as a result of his control of and position with the Black Company; and (4) incidental damage and expense resulting from his severance from the Black Company and the necessity to accept comparable employment elséwhere. We have examined the calculations of damages made by the court below. Bailey I, supra, at 880-82. We find that these calculations are reasonable, are supported by the evidence in the record, and cannot be said to be in error. The court below awarded damages of $103,207.20 as the value of the interest in the Black Company which Bailey would have acquired" }, { "docid": "17816537", "title": "", "text": "below held that the right of first refusal clause was valid and enforceable and Continental does not challenge that holding. The court below rejected Continental’s contention that under Illinois law a party to a contract may not be held liable to another contracting party for combining with others to induce a breach. It held that even if Continental were considered a party to the contract granting the right of first refusal, it was liable in tort since it had conspired with others to bring the breach. In our view this holding was correct. Staté jurisdictions are in disagreement as to whether one contracting party may recover against another for conspiring with third persons to breach the contract. Some jurisdictions hold that the only remedy the injured contracting party has under such circumstances is for breach of contract. In other jurisdictions a party to a contract who conspires with others to breach the contract is liable to the other contracting party in tort for so doing. See 16 Am.Jur.2d Conspiracy § 50, at 152-53 (1964); 15A C.J.S. Conspiracy § 13, at 640 (1967); and cases there cited. Illinois authority on this question takes the latter view, to the effect that a party to a contract is liable to another contracting party in damages for conspiring with others to bring about a breach of the contract. In Blivas and Page, Inc. v. Klein, 5 Ill. App.3d 280, 282 N.E.2d 210 (1972), defendants Klein and Page appealed from a judgment entered on a jury verdict based on a single count alleging breach of an oral agreement by Klein to retain plaintiff’s architectural firm on a housing project, wrongful inducement of the breach by Kay, and conspiracy between Klein and Kay to induce the breach. The Appellate Court of Illinois in affirming the judgment against both defendants insofar as it awarded actual damages to the plaintiff stated: While it is true that a party cannot be sued in tort for inducing the breach of his own contract, he can be sued for conspiracy with a third person who has induced him to breach his" }, { "docid": "4047795", "title": "", "text": "resignation. Accordingly, McDonald’s and OSI’s argument is misplaced, thus they are not entitled to summary judgment. D. Conspiracy To Tortiously Interfere With Contract Count VIII alleges that McDonald’s, OSI, and Liebermann conspired to induce Liebermann to breach his employment contract with AFTEC — the same employment contract discussed previously in count V. Defendants argue that this count is duplicative of count V and thus, cannot be pleaded as a separate cause of action. Plaintiffs argue that the count is not duplicative of count V because it adds Liebermann as a defendant. Count VIII will remain in this action with, as will be discussed below, one qualification. It is true under Illinois law that a party, ie., Liebermann, cannot be sued in tort for inducing the breach of his own contract; however, the party can be sued for conspiring with a third party who has induced the breach. Regan v. Garfield Ridge Trust & Sav. Bank, 220 Ill.App.3d 1078, 163 Ill.Dec. 605, 615, 581 N.E.2d 759, 769 (Ill.App.2d Dist.1991). It is also true that a conspiracy claim alleging a tort as the underlying wrongful act is duplicative where the underlying tort has been pled. See Cenco Inc. v. Seidman & Seidman, 686 F.2d 449, 453 (7th Cir.1982); Belkow v. Celotex Corp., 722 F.Supp. 1547, 1550 (N.D.Ill.1989). Because count VIII adds Liebermann, it is not completely identical to count V. But, importantly, the same conduct is at issue in both counts. Perhaps, in theory, counts V and VIII are “independent” causes of action since one alleges a conspiracy and adds an additional defendant. But, civil law, unlike criminal law, does not punish a conspiracy, it punishes the conspiracy only if damages ensue. Thus, certainly Plaintiffs cannot recover damages against McDonald’s and OSI under both count V and count VIII. In other words, because the same conduct is at issue in both counts, if the factfinder concludes that McDonald’s, OSI, and Liebermann conspired to induce the breach — count VIII — McDonald’s and OSI logically would also be liable under count V for tortiously interfering with the contract between AFTEC and Liebermann. But," }, { "docid": "17816565", "title": "", "text": "Jr. not liable on any of the counts and dismissed as to them. Bailey did not appeal from that dismissal. . The court set forth the well-established elements of this tort of intentional interference with contractual relations or inducing breach of contract, as follows: (1) the defendants’ knowledge of the contract between plaintiff and the third party, (2) defendants’ unjustified inducement of the third party to breach or otherwise render impossible the performance of the contract, (3) the subsequent breach or other such act by the third party, and (4) damage to plaintiff. See e. g., Mellor v. Budget Advisors, Inc., 415 F.2d 1218, 1221 (7th Cir. 1969); Republic Gear Co. v. Borg-Warner Corp., 406 F.2d 57, 61 (7th Cir.), cert. denied, 394 U.S. 1000, 89 S.Ct. 1596, 22 L.Ed.2d 777 (1969); General Capital Corp. v. U. S. Family Sporting Goods, Inc., 351 F.Supp. 364, 367 (N.D.Ill. 1972). Bailey I, supra, at 877. . The court below cited Frank Rosenberg, Inc. v. Carson Pine Scott & Co., 28 Ill.2d 573, 583-584, 192 N.E.2d 823, 829 (1963), and Ramsay Realty Co. v. Ramsay, 135 Iowa 612, 113 N.W. 468, 469 (1907), in support of that holding. . Continental’s reliance on Worrick v. Flora, 133 Ill.App.2d 755, 272 N.E.2d 708 (1971), is misplaced. That case did not involve the question of whether a party to a contract is liable for conspiring with an outside third party to induce its breach. It is not apposite here. . As was pointed out below, Bailey I, supra, at 880, both parties proceeded on the assumption at trial and in their proposed findings and conclusions that Mrs. Harre would have sold her shares to Bailey had he been able to meet the Meister Brau offer as to the estate’s shares. The court calculated damage upon that assumption, which was plainly correct. . 17 C.F.R. § 240.1Ob-5. . 15 U.S.C. § 78j(b). . 15 U.S.C. § 77q(a). . The court below concerned itself only with the Rule 10b-5 claim, having concluded that proof of a violation of the Rule would also amount to proof of violations of" } ]

[ { "docid": "12301720", "title": "", "text": "1031, 89 L.Ed. 1495 (1944), reversed the judgment of dismissal and stated that the finding that petitioner had not stated a claim on which relief could be granted was erroneous. The ground was that the defendant judge was not, under the allegations, performing judicial function so as to be immune. The complaint in the case before us alleges that the judge, magistrate and clerks each performed a “ministerial function” in connection with the conservatorship and citation proceeding. This allegation suggests a nondiscretionary action which precludes the notion of deliberate unlawful conduct. But if the term “ministerial” is used as the Court in Ex parte Virginia, 100 U.S. 339, 348, 25 L.Ed. 676 (1879), used it, it is plain that the charges against the judge, magistrate and clerks comprehend judicial rather than ministerial functions, and therefore do not remove their official immunity. Mere errors or irregularities in the Probate Court proceedings are insufficient to show a denial of due process. Skolnick v. Spolar, 317 F.2d 857 (7th Cir. 1963). The denial of a hearing on the motion to vacate the judge’s orders, or the judge’s alleged use of “insulting” language to Sarelas, does not present a constitutional question. Attorneys Green, Partee and Anzalone under the facts alleged are lawyers who participated in the Circuit Court in private litigation, and consequently are not state functionaries within the meaning of the Federal Civil Rights Act. Skolnick v. Martin, 317 F.2d 855 (7th Cir. 1963); Skolnick v. Spolar, 317 F.2d 857 (7th Cir. 1963). Moreover, since the complaint makes no showing that the judge, magistrate and clerks were not acting outside the ambit of their official function, they cannot have been guilty of deprivation of “any rights, privileges and immunities secured by the court and laws,” and the three defendant attorneys could not be joined as “willful participants” with the judges and clerks in a denial of rights so as to come within the rule of United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966). The Fourteenth Amendment protects against state action, not against individual action. Id., at" } ]

[ { "docid": "13108317", "title": "", "text": "of public policy to the end that the administration of justice may be independent and based on the free and unbiased convictions of the judge, uninfluenced by apprehension of personal consequences, it is a general rule that, where a judge has jurisdiction over the subject matter and the person, he is not liable civilly for acts done in the exercise of his judicial function, even though he acts erroneously, illegally, or irregularly, or even corruptly.” 164 F.2d 109. The doctrine of judicial immunity also applies to proceedings in which injunctive or other equitable relief is sought as well as to suits for money damages. The reasons for the judicial immunity rule apply regardless of the nature of the relief sought. Tate v. Arnold, 223 F.2d 782 (8th Cir. 1955); Mackay v. Nesbett, 285 F.Supp. 498 (D. Alaska, 1968); Rhodes v. Houston, 202 F.Supp. 624 (D.Neb.1962), affirmed, 309 F.2d 959 (8th Cir. 1962), cert. denied, 372 U.S. 909, 83 S.Ct. 724, 9 L.Ed.2d 719 (1963). Inasmuch as plaintiff’s complaint alleges relief under the Civil Rights Act, 42 U.S.C., Section 1983, it should be noted that the Civil Rights Act creates no exception to judicial immunity. Pierson v. Ray, supra. There is nothing in the legislative history of the Civil Rights Act which abrogates or in any way impairs the doctrine of judicial immunity. Byrne v. Kysar, 347 F.2d 734 (7th Cir. 1965), cert. denied, 383 U.S. 913, 86 S.Ct. 902, 15 L.Ed.2d 668 (1966), rehearing denied, 384 U.S. 914, 994, 86 S.Ct. 1891, 16 L.Ed.2d 1011 (1966). Judges and Justices acting in their judicial capacities consistently have been held to be immune from suit under the Civil Rights Act. Haldane v. Chagnon, 345 F.2d 601 (9th Cir. 1965); Agnew v. Moody, 330 F.2d 868 (9th Cir. 1964); Hurlburt v. Graham, 323 F.2d 723 (6th Cir. 1963); Jennings v. Nester, 217 F.2d 153 (7th Cir. 1954); Drusky v. Judges of the Supreme Court, 324 F.Supp. 332 (W.D.Pa.1971); Carpenter v. Oldham, 314 F.Supp. 1350 (W.D.Mo.1970); Hagan v. State of California, 265 F.Supp. 174 (C.D.Cal.1967). Inasmuch as the affidavits of Senior Judge Roy W." }, { "docid": "14647985", "title": "", "text": "protected from civil liability for judicial actions done under color of office if they have jurisdiction, even if the acts are done under authority of unconstitutional statutes. This immunity applies in actions for damages brought under Title 42 U.S.C. § 1983, as in this case. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) Beard v. Stephens, 372 F.2d 685 (5th CCA 1967) Franklin v. Meredith, 386 F.2d 958 (10th CCA 1967) Carmack v. Gibson, 363 F.2d 862 (5th CCA 1966) 5. A prosecuting attorney when acting in his official capacity is protected by the same immunity in civil cases that is applicable to judges, provided that his acts are within the scope of his jurisdiction and by authorization of law. Madison v. Purdy, 410 F.2d 99 (5th CCA 1969) Carmack v. Gibson, supra Lewis v. Brautigam, 227 F.2d 124 (5th CCA 1955) Peek v. Mitchell, 419 F.2d 575 (6th CCA 1970) Bauers v. Heisel, 361 F.2d 581 (3rd CCA 1966), Cert. den. 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457 (1967) Friedman v. Younger, 282 F.Supp. 710 (C.D.Calif.1968) Cf. Peterson v. Stanczak, 48 F.R.D. 426 (N.D.Ill.1969). 6. At no time did the defendants Ford and Dufreche act other than in their capacity as City Judge and Assistant District Attorney, respectively. Accordingly, both are entitled to the protection of judicial immunity that is afforded judicial officers acting in the scope of their jurisdiction. 7. A private person cannot be held liable under Title 42 U.S.C. § 1983 unless his wrongful action was done under color of state law or state authority. Further, a private person alleged to have conspired with a state judge and prosecuting attorney who are entitled to immunity, cannot be held liable, since he is not conspiring with persons acting under color of law “against whom [plaintiff] could state a valid claim” under 42 U.S.C. § 1983. Haldane v. Chagnon, 345 F.2d 601, 604 (9th CCA 1965) Shakespeare v. Wilson, 40 F.R.D. 500, 505 (S.D.Calif.1966) Stambler v. Dillon, 302 F.Supp. 1250 (S.D.N.Y.1969) Jemzura v. Belden, 281 F.Supp. 200, 206 (N.D.N.Y.1968) Cf. Hall" }, { "docid": "13444683", "title": "", "text": "Complaint are alleged to have occurred; its store manager, Gerald Prouix; Walter Ellis, proprietor of a detective agency employed by Mason to protect its store; Nadean Matlack, a private detective in the employ of Ellis and assigned to the Mason store; John Price, a police officer of Logan Township, Blair County, Pennsylvania; Donald Fowkes, a deputy constable of Logan Township, Blair County, Pennsylvania; and W. Don Marlin, a justice of the peace of Logan Township, Blair County, Pennsylvania. The Complaint against defendant Marlin was dismissed by order of this court of December 7, 1967, on motion for judgment on the pleadings, on the grounds that as a justice of the peace, defendant Marlin was immune from liability for damages. Pierson v. Ray, 386 U.S. 547, 553-555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Bauers v. Heisel, 361 F.2d 581, 584 (3d Cir. 1966). Defendants Mason, Prouix, Ellis and Matlack have moved to dismiss the action against them on grounds, inter alia, that they did not act “under color of any statute, ordinance, regulation, custom or usage”; that plaintiff pleads no facts which could warrant any inference that they participated in any conspiracy to deprive her of any civil rights; and, there being no diversity of citizenship, that this court has no jurisdiction over tort actions for false arrest, false imprisonment and assault, as averred in jf 4 of the Complaint. We think the motions of these defendants should be granted and plaintiff’s action against them dismissed. On motion to dismiss, the allegations of the Complaint and the inferences to be drawn therefrom must be taken most strongly in plaintiff’s favor. Valle v. Stengel, 176 F.2d 697, 701 (3d Cir. 1949). It is likewise axiomatic that in an action for damages under the Civil Rights statutes, the plaintiff must allege highly specific facts. United States ex rel. Hoge v. Bolsinger, 211 F.Supp. 199 (W.D.Pa.1962), aff’d 311 F.2d 215 (3d Cir. 1962), cert. denied 372 U.S. 931, 83 S.Ct. 878, 9 L.Ed.2d 735 (1963); Pugliano v. Staziak, 231 F.Supp. 347, 349 (W.D.Pa.1964), aff’d 345 F.2d 797 (3d Cir. 1965). Plaintiff alleges that" }, { "docid": "6318341", "title": "", "text": "Act prescribes two elements as requisite for recovery: (1) The conduct complained of must have been done by some person acting under color of state or local law; and (2) such conduct must have subjected the plaintiff to a deprivation of rights, privileges or immunities secured to him by the Constitution and laws of the United States. In the instant action, plaintiff has not met either requirement. The status of an attorney appointed by a state court to represent a relator in a habeas corpus action, although he is an officer of the court, does not make him an officer of the Commonwealth of Pennsylvania or of any governmental subdivision thereof. He is just another private individual for purposes of § 1983, and a professional act done by him while representing the relator in such habeas corpus action cannot be considered an act done under color of state authority. With regard to the second requirement, none of the plaintiff’s constitutional rights have been invaded by the defendant. The only allegations of fact are doubtful charges of negligence and breach of professional ethics, neither of which constitutes a denial of due process or equal protection or any other right protected by the Constitution and laws of the United States. Cf. Johnson v. Kreider, 264 F.Supp. 188 (M.D.Pa.1967); Pritt v. Johnson, 264 F.Supp. 167 (M.D.Pa.1967); Kregger v. Posner, 248 F.Supp. 804 (E.D.Mich.1966); Pugliano v. Staziak, 231 F.Supp. 347, 351 (W.D.Pa.1964), aff’d 345 F.2d 797 (3rd Cir. 1965); Rhodes v. Meyer, 225 F.Supp. 80, 93-94 (D.Neb.1963). It is clear that redress for negligence by an attorney as a private individual must be sought in the state courts, absent diversity of citizenship and a federal question. An appropriate order will be entered. . Martin v. United States, 182 F.2d 225 (5th Cir. 1950). . Although we refrain from passing on the merits of the complaint, it is difficult to see any substance whatsoever to the plaintiff’s claim for damages. Nothing appears which would sustain a claim of ineffective assistance of counsel. Indeed, the brief prepared by Attorney Lesher, attached to the complaint, appears to" }, { "docid": "4257270", "title": "", "text": "complaint filed on September 17, 1963. Thus, a new and distinct cause of action was introduced by the amended complaint filed on January 12, 1968. The acts complained of allegedly took place in November, 1963, which is more than four years before the filing of this claim for relief. The Civil Rights Act contains no provision limiting the time within which an action may be brought under Section 1985. The applicable period of limitation is that provided by statutes of California, the state in which the action arose. Beauregard v. Wingard, 230 F.Supp. 167 (S.D.Cal.1964). The appropriate California statute is Section 338(1) of the California Code of Civil Procedure, which provides that actions “upon a liability created by statute” must be brought within three years. Smith v. Cremins, 308 F.2d 187 (9th Cir. 1962). Since the period of limitation has been exceeded, the action is dismissed as against the newspaper defendants. Plaintiff has alleged that the “county defendants” acted “in concert, maliciously, to deprive her of fair trial and due process of law.” This claim is directed against various judges, the District Attorney and his deputies, and other officials of San Mateo County who were involved in the criminal proceedings against Dr. Cross on October 17, 1963. Jurisdiction of this federal claim is correctly asserted under 28 U.S.C. § 1343. Damages are sought pursuant to 42 U.S.C. §§ 1983,1985. Judges are immune from liability under the Civil Rights Act for acts committed within their judicial capacity even if a judge, is accused of acting maliciously. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2.d 288 (1967). A like immunity extends to other governmental officers whose duties are related to the judicial process. Harmon v. Superior Court of State of California, 329 F.2d 154 (9th Cir. 1964). Plaintiff complains of acts committed by these officials within their official capacity. The defendants are immune under the immunity doctrine and as such the action against them must be dismissed. See, Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). Plaintiff has also named the County of San" }, { "docid": "18118599", "title": "", "text": "terms contains no recognition of possible defenses, by way of privilege, even where the defendants may have acted in good faith, in compliance with what they believe to be their official duty. Despite the broad sweep of the statutory language, it has not been authoritatively determined that it was the intention of Congress in enacting section 1983 “to abolish wholesale all common law immunities.” Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). Quite the contrary. Pierson seems to have laid to rest any doubt that the defense of common law immunities will not be applicable to actions arising under section 1983. The Supreme Court had held previously in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), that section 1983 did not abrogate the immunity of legislators for acts done within their j legislative role. Pierson specifically ! held that judges are entitled to immunity jj from suit for acts done in discharge of [their judicial functions. While the Supreme Court has granted the defense of absolute immunity to legislators and judges for acts done in discharging their official duties, lower federal courts have extended this immunity to a wide variety of judicial and quasi-judicial officers, including clerks of court, justices of the peace, prosecuting attorneys, and sometimes even governors, jailers, and board members. See, e. g., Brown v. Dunne, 409 F.2d 341 (7th Cir. 1969); Sullivan v. Kelleher, 405 F.2d 486 (1st Cir. 1968); Fanale v. Sheehy, 385 F.2d 866 (2d Cir. 1967); Rhodes v. Meyer, 334 F.2d 709 (8th Cir.), cert. denied, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186 (1964); Kenney v. Fox, 232 F.2d 288 (6th Cir.), cert. denied, Kenney v. Killian, 352 U.S. 855, 77 S.Ct. 84, 1 L.Ed.2d 66 (1956); Delaney v. Shobe, 235 F.Supp. 662 (D.Or.1964). The Supreme Court has not definitively spoken on the applicability of the doctrine-of governmental immunity in actions brought under section 1983 against local governmental agency officials, such as the defendants in this case. Nevertheless, while such officials/ may not be entitled to the absolute im-i" }, { "docid": "5431646", "title": "", "text": "cert. denied 375 U.S. 985, 84 S.Ct. 519, 11 L.Ed.2d 473 (1964); Skolnick v. Spolar, 317 F.2d 857 (7th Cir. 1963), cert. denied 375 U.S. 904, 84 S.Ct. 195, 11 L.Ed.2d 145 (1964); Skolnick v. Martin, 317 F.2d 855 (7th Cir. 1963); Bottone v. Lindsley, 170 F.2d 705 (10th Cir. 1948); Kenney v. Fox, 232 F.2d 288 (6th Cir. 1956); Reinke v. Richardson, 279 F.Supp. 155 (E.D.Wis.1968); Christman v. Commonwealth of Pa., 275 F.Supp. 434 (W.D.Pa.1967); Pritt v. Johnson, 264 F.Supp. 167 (M.D.Pa.1967). . Pugliano v. Staziak, 231 F.Supp. 347 (W.D.Pa.1964), aff’d 345 F.2d 797 (3rd Cir. 1965); Kregger v. Posner, 248 F.Supp. 804 (E.D.Mich.1966). . See Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951); Norwood v. Parenteau, 228 F.2d 148 (8th Cir. 1955), cert. denied 351 U.S. 955, 76 S.Ct. 852, 100 L.Ed. 1478 (1956); Mackay v. Nesbett, 285 F.Supp. 498 (D.Alas.1968); Sheridan v. Garrison, 273 F.Supp. 673 (E.D.La.1967); Sarisohn v. Appellate Division, Second Department, Supreme Court of New York, 265 F.Supp. 455 (S.D.N.Y.1967); Brock v. Schiro, 264 F.Supp. 330 (E.D.La. 1967); Stevens v. Frick, 259 F.Supp. 654 (S.D.N.Y.1966), aff’d, 372 F.2d 378 (2d Cir. 1967), cert. denied 387 U.S. 920, 87 S.Ct. 2034, 18 L.Ed.2d 973; Chaffee v. Johnson, 229 F.Supp. 445 (S.D.Miss. 1964), aff’d, 352 F.2d 514 (5th Cir.) cert. denied 384 U.S. 956, 86 S.Ct. 1582, 16 L.Ed.2d 553 (1966); Island Steamship Lines v. Glennon, 178 F.Supp. 292 (D.Mass.1959). While the Supreme Court has left the specific question open, see Cameron v. Johnson, 381 U.S. 741, 85 S.Ct. 1751, 14 L.Ed.2d 715 (1965); Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2, 85 S.Ct. 1116, 14 L.Ed.2d 22, a majority of the circuits have held that 42 U.S.C. § 1983 does not create an exception to 28 U.S.C. § 2283. Baines v. City of Danville, 337 F.2d 579 (4th Cir. 1964) cert. denied, sub. nom. Chase v. McCain, 381 U.S. 939, 85 S.Ct. 1772, 14 L.Ed.2d 702 (1965); Smith v. Village of Lansing, 241 F.2d 856 (7th Cir. 1957); Sexton v. Barry, 233 F.2d 220 (6th Cir. 1956), cert. denied 352" }, { "docid": "21967849", "title": "", "text": "U.S. 547, 554, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1966); Tate v. Arnold, 223 F.2d 782 (8th Cir. 1955). The doctrine recognizes that “it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself.” 13 Wall, at 347. The doctrine of judicial immunity has also been applied to prosecuting attorneys and those associated with them in the discharge of their duties on the basis that they are quasi-judicial officers and should be afforded the same immunity in order that they may act freely and fearlessly in the discharge of their important official functions. Yaselli v. Goff, 12 F.2d 396, 56 A.L.R. 1239 (2d Cir. 1926); Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949). It has likewise been held that the doctrine of immunity of quasi-judicial officers such as prosecuting attorneys has not been modified by the civil rights statute, Title 42 § 1983. Rhodes v. Meyer, 334 F.2d 709, 718 (8th Cir. 1964), cert. denied, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186; Rhodes v. Houston, 202 F.Supp. 624, 633-634 (D.Neb.1962), aff’d, 309 F.2d 959 (8th Cir. 1962); Hurlburt v. Graham, 323 F.2d 723 (6th Cir. 1963); Wise v. City of Chicago, 308 F.2d 364 (7th Cir. 1962); Phillips v. Nash, 311 F.2d 513 (7th Cir. 1962); Agnew v. Moody, 330 F.2d 868 (9th Cir. 1964); Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966); Fanale v. Sheehy, 385 F.2d 866 (2d Cir. 1967); Kostal v. Stoner, 292 F.2d 492 (10th Cir. 1961). Plaintiffs contend that the defendants, Richard Turner, Attorney General, and Douglas Carlson, Assistant Attorney General, were acting in an investigatory capacity and not in their quasi-judicial capacities and are therefore not immune from prosecution under the Civil Rights Act, Title 42 § 1983. Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965); Dodd v. Spokane County, Washington, 393 F.2d 330 (9th Cir. 1968). Defendants on the other hand urge that the Attorney General and" }, { "docid": "13108318", "title": "", "text": "42 U.S.C., Section 1983, it should be noted that the Civil Rights Act creates no exception to judicial immunity. Pierson v. Ray, supra. There is nothing in the legislative history of the Civil Rights Act which abrogates or in any way impairs the doctrine of judicial immunity. Byrne v. Kysar, 347 F.2d 734 (7th Cir. 1965), cert. denied, 383 U.S. 913, 86 S.Ct. 902, 15 L.Ed.2d 668 (1966), rehearing denied, 384 U.S. 914, 994, 86 S.Ct. 1891, 16 L.Ed.2d 1011 (1966). Judges and Justices acting in their judicial capacities consistently have been held to be immune from suit under the Civil Rights Act. Haldane v. Chagnon, 345 F.2d 601 (9th Cir. 1965); Agnew v. Moody, 330 F.2d 868 (9th Cir. 1964); Hurlburt v. Graham, 323 F.2d 723 (6th Cir. 1963); Jennings v. Nester, 217 F.2d 153 (7th Cir. 1954); Drusky v. Judges of the Supreme Court, 324 F.Supp. 332 (W.D.Pa.1971); Carpenter v. Oldham, 314 F.Supp. 1350 (W.D.Mo.1970); Hagan v. State of California, 265 F.Supp. 174 (C.D.Cal.1967). Inasmuch as the affidavits of Senior Judge Roy W. Harper, Chief Judge James H. Meredith and Judge John K. Regan demonstrate that they have had no contact with plaintiff in any manner other than in their official capacity as United States District Judge, the Court holds that these defendants are immune from suit. Officials of the judiciary are also entitled to the same immunity as judges. In particular, the clerks of courts have been held not subject to civil damage suits by' reason of the doctrine of judicial immunity. Davis v. McAteer, 431 F.2d 81 (8th Cir. 1970); Rhodes v. Meyer, 334 F.2d 709 (8th Cir. 1964), cert. denied, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186 (1964). Accordingly, referees in bankruptcy and trustees in bankruptcy should not be subject to civil damage suits under the doctrine of judicial immunity, for they are officers of the bankruptcy court. 11 U.S.C., Secs. 61, 62; In re Swartz, 130 F.2d 229 (7th Cir. 1942); Fish v. East, 114 F.2d 177 (10th Cir. 1940). Since defendant Robert E. Brauer, Referee in Bankruptcy for the United States" }, { "docid": "15756446", "title": "", "text": "S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966). Plaintiffs herein, seek to cloak the defendants with the authority of state law by alleging a conspiracy between them and Justice Dillon. There is no doubt that Justice Dillon is immune from any liability under the Civil Rights Act, see, e. g., Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Bradford Audio Corp. v. Pious, 392 F.2d 67 (2d Cir. 1968); Fanale v. Sheehy, 385 F.2d 866 (2d Cir. 1967); Beard v. Stephens, 372 F.2d 685 (5 Cir. 1967); Henig v. Odorioso, 385 F.2d 491 (3d Cir. 1967), cert. denied, 390 U.S. 1016, 88 S.Ct. 1269, 20 L.Ed.2d 166 (1967); Rhodes v. Meyer, 334 F.2d 709 (8th Cir. 1964), cert. denied, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186 (1964); Morgan v. Sylvester, 220 F.2d 758 (2d Cir. 1955), aff’g, 125 F.Supp. 380 (S.D.N.Y.1954); Jemzura v. Belden, 281 F.Supp. 200 (N.D.N.Y.1968). But see, United States v. Clark, 249 F.Supp. 720 (S.D.Ala.1965), where he acts within the course and scope of his judicial duties, as he has done in connection with the state court proceedings with which the instant action is concerned. Plaintiffs have thus failed to state a claim for relief against defendant Justice Dillon, and his motion to dismiss the amended complaint is hereby granted. The other defendants, who are private persons, cannot therefore be held liable under § 1983 because they did not act in conspiracy with a state official against whom a valid claim could be stated. Consequently, their allegedly wrongful actions were not done under color of state law or state authority. See, e. g., Haldane v. Chagnon, 345 F.2d 601, 604-605 (9th Cir. 1965); Jemzura v. Belden, supra, 281 F.Supp. at 206; Shakespeare v. Wilson, 40 F.R.D. 500, 504-505 (S.D.Cal.1966). Plaintiffs apparently allege that the defendant attorneys, as officers of the court, supply the requisite connection to state action under § 1983. It is well established that attorneys are not state officers, but private persons, for the purposes of the Civil Rights Act. See, e. g., Haldane v. Chagnon, supra, 345 F.2d" }, { "docid": "7483964", "title": "", "text": "Education and Welfare and adopted by the Maine State Department of Health and Welfare during the pend-ency of this action. For the reasons which follow, the Court has concluded that neither Section 1983 nor the “Fair Hearing” regulations support an award of damages to plaintiffs in this action. I Plaintiffs seek first to hold defendants personally liable for damages under Section 1983. Because the record in this ease is devoid of any indication .that defendants acted other than in good faith and within the scope of their authority, no personal liability can attach to them. Section 1983 makes liable \"every person\" who under color of state law deprives another person of his civil rights. That it imposes liability on state officials for acts done, either within or without the scope of their authority, was definitely established by Monroe v. Pape, 365 U.S. 167, 171-187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Furthermore, Section 1983 is cast in terms so broad as to indicate that governmental immunity can never be a defense in suits brought under that section. Nevertheless, de spite the broad sweep of the statutory language, it has now been authoritatively determined that it was not the intention of Congress in enacting Section 1983 \"to abolish wholesale all commonlaw immunities.\" Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). Thus, the Supreme Court has held that Section 1983 did not abrogate the immunity of legislators for acts within their legislative role, Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), or the immunity of judges for acts in discharge of their judicial functions, Pierson v. Ray, supra 386 U.S. at 553-555, 87 S.Ct. 1213. And the lower federal courts have extended this immunity to a wide variety of judicial and quasi-judicial officers, including clerks of court, justices of the peace, prosecuting attorneys, and sometimes even governors, jailers, and parole board members. See, e. g., Sullivan v. Kelleher, 405 F.2d 486 (1st Cir. 1968); Brown v. Dunne, 409 F.2d 341 (7th Cir. 1969); Fanale v. Sheehy, 385 F.2d 866 (2d" }, { "docid": "17691885", "title": "", "text": "cognizable under 42 U.S.C. § 1983 for alleged inadequate representation. Accord, French v. Corrigan, 432 F.2d 1211 (7th Cir. 1970). In Peake v. County of Philadelphia, 280 F.Supp. 853 (E.D.Pa.1968), petitioner contended that the Voluntary Defenders Association, through two public defenders, refused to assist him in the preparation for and institution of legal proceedings which refusal allegedly deprived petitioner of his civil rights within the meaning of 42 U.S.C. §§ 1983, 1985. Denying petitioner’s request on the ground that the complaint failed to state a claim upon which relief could be granted, the District Court said: “For the defendants’ action to be ‘under color of’ State law, there must be a ‘[m]isuse of power, possessed by virtue of state law’. Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 482, 5 L.Ed.2d 492 (1961); [citation omitted] . The fact that Attorneys Pepp and Hassett are members of the' Voluntary Defenders Association, an organization which is, in part, subsidized by the State or local governments, does not mean that any power they [Pepp and Hassett] possess is possessed by virtue of State law.” 280 F.Supp. at 854. See Vance v. Robinson, 292 F.Supp. 786 (W.D.N.C.1968); Kregger v. Posner, 248 F.Supp. 804 (E.D.Mich.1966); Pugliano v. Staziak, 231 F.Supp. 347 (W.D.Pa.1964), aff’d. per curiam, 345 F.2d 797 (3d Cir. 1965). The New Jersey State Public Defender Act did not clothe the instant defendants with a “power” that they did not already possess. These defendants were empowered to represent plaintiffs by virtue of their being licensed to practice law pursuant to R.R. 1:21 — 1 et seq. Moreover, though remunerated by the State of New Jersey, these public defenders were neither servants nor representatives of the State, nor were they controlled by the State. For all of the foregoing reasons, I conclude that the appointment of defendants to the Public Defender and their acceptance of the representation of the plaintiffs did not make them officers or servants of the State. Consequently, their actions were not performed for the state nor “under color of” state law within the purview of 42 U.S.C. § 1983" }, { "docid": "11204937", "title": "", "text": "U.S.C. § 1343. The first basic requirement is» that the person being sued be acting-under color of state law. “This test can rarely be satisfied in the case of anyone-other than a state official.” Jobson v.. Henne, 355 F.2d 129, 133 (2d Cir.1966).. “The misuse of power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law is action pursued under color of law within the meaning of 42 U.S.C.A. § 1983.” Basista V. Weir, 340 F.2d 74, 80 (3d Cir.1965). In this regard, it should be noted that plaintiff has again attempted to sue Mr. Noll, his counsel. In Pugliano v. Staziak, 231 F.Supp. 347, 351 n. 5 (W.D. Pa.1964), aff’d. 345 F.2d 797 (3d Cir. 1965), it is stated: “An attorney’s status as an ‘officer of the court’ does not make him an officer of the Commonwealth of Pennsylvania or of any governmental subdivision thereof. He is just another private individual for purposes of §§ 1983 and 1985. * * *” The professional acts performed by plaintiff’s counsel can not be considered acts done under color of state authority. Kregger v. Posner, 248 F.Supp. 804, 8061 (E.D.Mich.1966). This complaint will be dismissed as against Noll, as was the previous complaint filed by plaintiff. Likewise, there is nothing in the complaint to indicate that the defendant, Dorothy Arlene Kriner, was acting under color of state law. Simply because she testified in the criminal case against plaintiff does not in any way cloak her with the authority of the state. Thus the complaint must be dismissed as to defendant Kriner. This complaint also raises the question of whether prosecuting attorneys and a judge can be held liable for acts done in their official capacity. In the recent case of Bauers v. Heisel, 361 F.2d 581 (3d Cir.1966), it was held that prosecuting attorneys have the same immunity from suit as is afforded members of the judiciary. Since the acts complained of were clearly within the authority and jurisdiction of their respective offices, the Hon. George W. Atkins, President Judge" }, { "docid": "18117305", "title": "", "text": "kind in connection with the agreement, plaintiffs’ contentions, apparently founded solely on the theory of respondeat superior are too thin to sustain a claim for relief against Lindsay, Leary, and Rockefeller. Salazer v. Dowd, 256 F.Supp. 220 (D.Colo.1966); Jordan v. Kelly, 223 F.Supp. 731 (W.D.Mo.1963). Esveroff was counsel to Palermo but not to Saltzman in the Richmond County trial. His alleged association with the negotiations leading to the agreement was limited to discussions of the Queens County robbery with representatives of the Police Department, the Richmond County District Attorney’s office, and Justice Kern [Compl. ¶ 5(a)]. Palermo discharged him as counsel after Palermo had been convicted in the Richmond County trial but before he was sentenced there. (Esveroff Aff. p. 1). Rein and his firm represented Provident in the negotiations which led to the agreement (Bobick Aff. p. 1). Provident was undisputedly the victim of the robbery. Federal jurisdiction under 42 U.S.C. § 1983 does not extend to all controversies between individual citizens, but only to deprivations of constitutional rights arising from the actions of persons acting under color of state law, Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). Since Esveroff, Rein and Provident were not acting under color of state law, jurisdiction under § 1983 is not properly invoked. Brown v. Dunne, 409 F.2d 341 (7th Cir. 1969); Rhodes v. Mayer, 225 F.Supp. 80, 93-94 (D.Neb.1963), affd., 334 F.2d 709 (8th Cir. 1964), cert. denied, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186; Pugliano v. Staziak, 231 F.Supp. 347, 351 n. 5 (W.D.Pa.1964), affd. per curiam, 345 F.2d 797 (3d Cir. 1965); Jackson v. Hader, 271 F.Supp. 990 (W. D.Mo.1967); Pritt v. Johnson, 264 F.Supp. 167 (M.D.Pa.1967); Kregger v. Posner, 248 F.Supp. 804, 806 (E.D.Mich.1966). The motion of Esveroff, Rein and Provident for dismissal are therefore granted. District Attorney Darrigrand of Oneida County is not alleged to have entered into any agreement with plaintiffs regarding the criminal charge that was pending against them in his county;" }, { "docid": "23600186", "title": "", "text": "between classes or individuals. Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Hoffman v. Halden, 268 F. 2d 280 (9th Cir. 1959); Colon v. Grieco, 226 F.Supp. 414 (D.N.J.1964); Selico v. Jackson, 201 F.Supp. 475 (S.D.Cal. 1962).” Daly v. Pedersen, 278 F.Supp. 88 (D.Minn.1967); Weise v. Reisner, 318 F.Supp. 580, 583 (E.D.Wis.1970). Cf. Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1970). The judicial immunity doctrine also sustains the dismissals. Assuming arguendo that Philip Robinson was committed under a repealed statute, such judicial miscue does not remove the shield of immunity. Judge Whipple properly pointed to the essential distinction between “clear absence of jurisdiction” and “excess of jurisdiction.” See Bauers v. Heisel, 361 F.2d 581, 591 (3d Cir. 1966) cert. den. 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457 (1967); Jacobson v. Schaefer, 441 F.2d 127 (7th Cir. 1971); Pritt v. Johnson, 264 F.Supp. 167, 170 (M.D.Pa.1967). Cf. Wade v. Bethesda Hospital, 337 F.Supp. 671 (S. D.Ohio 1971). In Gaito v. Ellenbogen, 425 F.2d 845 (3d Cir. 1970), we affirmed the dismissal of a state prisoner’s civil rights complaint against four of the five named defendants, two state court judges, the Pennsylvania Attorney General, and the Pittsburgh District Attorney, insofar as these defendants were immune from suit as state officials. In Lockhart v. Hoenstine, 411 F.2d 455 (3d Cir. 1969), a state prisoner brought an action for damages under 42 U.S.C.A. § 1983 against a Prothonotary of the Superior Court of Pennsylvania for failure to accept certain papers for filing. The Prothonotary’s motion for summary judgment was granted, and affirmed on appeal. The court noted that, “[I]n addition to the recognized immunity enjoyed by judicial and quasi-judicial officers, including prothonotaries, there exists an equally well-grounded principle that any public official acting pursuant to .court directive is also immune from suit.” We took counsel from Ginsburg v. Stern, 125 F.Supp. 596, 602 (W.D.Pa. 1954), aff’d. 225 F.2d 245 (3d Cir. 1955), where the argument for civil liability was squarely faced: “Thus, assuming that the failure to file said petition was patently" }, { "docid": "5431645", "title": "", "text": "Tate v. Arnold, 223 F.2d 782 (8th Cir. 1955); Cawley v. Warren, 216 F.2d 74 (7th Cir. 1954); Francis v. Crafts, 203 F.2d 809 (1st Cir. 1953), cert. denied 346 U.S. 835, 74 S.Ct. 43, 98 L.Ed. 357; Mackay v. Nesbett, 285 F.Supp. 498 (D.Alas.1968); Gilland v. Hyder, 278 F.Supp. 189 (E.D.Tenn.1967); Rhodes v. Houston, 202 F.Supp. 624 (D.Neb.1962), affirmed 309 F.2d 959 (8th Cir.), cert. denied, 372 U.S. 909, 83 S.Ct. 724, 9 L.Ed.2d 719 (1963). See especially Bauers v. Heisel, 361 F.2d 581 (3rd Cir. 1966) and eases cited therein. . Meier v. State Farm Mutual Auto Ins. Co., 356 F.2d 504 (7th Cir.)., cert. denied 385 U.S. 875, 87 S.Ct. 151, 17 L.Ed. 2d 102 (1966); Byrne v. Kysar, 347 F.2d 734 (7th Cir.), cert. denied 384 U.S. 914, 86 S.Ct. 1348, 16 L.Ed.2d 367 (1965); Rhodes v. Meyer, 225 F.Supp. 80, 107 (D.Neb.1963), aff’d, 334 F.2d 709 (8th Cir. 1964), cert. denied 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186 (1965); Sarelas v. Porikos, 320 F.2d 827 (7th Cir. 1963), cert. denied 375 U.S. 985, 84 S.Ct. 519, 11 L.Ed.2d 473 (1964); Skolnick v. Spolar, 317 F.2d 857 (7th Cir. 1963), cert. denied 375 U.S. 904, 84 S.Ct. 195, 11 L.Ed.2d 145 (1964); Skolnick v. Martin, 317 F.2d 855 (7th Cir. 1963); Bottone v. Lindsley, 170 F.2d 705 (10th Cir. 1948); Kenney v. Fox, 232 F.2d 288 (6th Cir. 1956); Reinke v. Richardson, 279 F.Supp. 155 (E.D.Wis.1968); Christman v. Commonwealth of Pa., 275 F.Supp. 434 (W.D.Pa.1967); Pritt v. Johnson, 264 F.Supp. 167 (M.D.Pa.1967). . Pugliano v. Staziak, 231 F.Supp. 347 (W.D.Pa.1964), aff’d 345 F.2d 797 (3rd Cir. 1965); Kregger v. Posner, 248 F.Supp. 804 (E.D.Mich.1966). . See Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951); Norwood v. Parenteau, 228 F.2d 148 (8th Cir. 1955), cert. denied 351 U.S. 955, 76 S.Ct. 852, 100 L.Ed. 1478 (1956); Mackay v. Nesbett, 285 F.Supp. 498 (D.Alas.1968); Sheridan v. Garrison, 273 F.Supp. 673 (E.D.La.1967); Sarisohn v. Appellate Division, Second Department, Supreme Court of New York, 265 F.Supp. 455 (S.D.N.Y.1967); Brock v. Schiro, 264 F.Supp." }, { "docid": "7483965", "title": "", "text": "that section. Nevertheless, de spite the broad sweep of the statutory language, it has now been authoritatively determined that it was not the intention of Congress in enacting Section 1983 \"to abolish wholesale all commonlaw immunities.\" Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). Thus, the Supreme Court has held that Section 1983 did not abrogate the immunity of legislators for acts within their legislative role, Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), or the immunity of judges for acts in discharge of their judicial functions, Pierson v. Ray, supra 386 U.S. at 553-555, 87 S.Ct. 1213. And the lower federal courts have extended this immunity to a wide variety of judicial and quasi-judicial officers, including clerks of court, justices of the peace, prosecuting attorneys, and sometimes even governors, jailers, and parole board members. See, e. g., Sullivan v. Kelleher, 405 F.2d 486 (1st Cir. 1968); Brown v. Dunne, 409 F.2d 341 (7th Cir. 1969); Fanale v. Sheehy, 385 F.2d 866 (2d Cir. 1967); Rhodes v. Meyer, 334 F.2d 709 (8th Cir.), cert. denied 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186 (1964); Kenney v. Fox, 232 F.2d 288 (6th Cir.), cert. denied 352 U.S. 855, 77 S.Ct. 84, 1 L.Ed.2d 66 (1956); Delaney v. Shobe, 235 F.Supp. 662 (D.Or.1964). The Supreme Court has not definitively spoken on the applicability of the doctrine of governmental immunity in actions brought under Section 1983 against state administrative officials, such as the defendants in this case. Plainly, such officials are not entitled to the absolute immunity which has been accorded to legislators and judges, for \"to hold all state officers immune from suit would very largely frustrate the salutary purpose of this provision.\" Jobson v. Henne, supra 355 F.2d at 133; Hoffman v. Halden, 268 F.2d 280, 300 (9th Cir. 1959). However, in addition to reaffirming the common-law immunity of judges, the Court in Pierson v. Ray specifically held that the defense of good faith and probable cause was available in an action under Section 1983 to police officers" }, { "docid": "13108313", "title": "", "text": "Missouri. The conduct of the Judges complained of by plaintiff herein is confined by plaintiff’s allegations to their official conduct with respect to the actions in which they had judicial responsibility. The principle is well established that judicial officers are immune from suits for money damages for acts performed in the discharge of their official duties. Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646 (1971); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Schwartz v. Weinstein, 459 F.2d 882 (8th Cir. 1972); Jacobson v. Shaefer, 441 F.2d 127 (7th Cir. 1971); Wilhelm v. Turner, 431 F.2d 177 (8th Cir. 1970), cert. denied, 401 U.S. 947, 91 S.Ct. 919, 28 L.Ed.2d 230 (1971); O’Bryan v. Chandler, 352 F.2d 987 (10th Cir. 1965), cert. denied, 384 U.S. 926, 86 S.Ct. 1444, 16 L.Ed.2d 530 (1966); Rhodes v. Meyer, 334 F.2d 709 (8th Cir. 1964); Meredith v. Van Oosterhout, 286 F.2d 216 (8th Cir. 1960), cert. denied, 365 U.S. 835, 81 S.Ct. 749, 5 L.Ed.2d 745 (1961). One of the first major cases dealing with judicial immunity from suit is Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646 (1871). In that case the plaintiff, an attorney, had sued to recover damages from the defendant, a Justice of the Supreme Court of the District of Columbia, who had ordered plaintiff’s name stricken from the roll of attorneys as a result of certain remarks the plaintiff had made to him during a murder trial. The Court held that the Judge was immune from suit as long as he had jurisdiction of the subject matter, no matter how irregular his actions might have been, nor how malicious or corrupt his motives might be. The Court stated as follows, at 80 U.S. 347: “For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequence to himself. Liability to answer to everyone who might feel" }, { "docid": "13108312", "title": "", "text": "and closed by court order of June 25, 1970, with all assets, property and claims of Diversified Brokers being turned ‘over to defendant Nooney as Trustee in Bankruptcy, and defendant Symington was thereupon discharged as Receiver having fully performed all duties required of him as Receiver of Diversified Brokers. On June 26, 1969, on petition of the Trustee, the Trustee was authorized to and did appoint defendant Symington as attorney for the Trustee, in which capacity alone did defendant Symington thereafter serve the estate of the bankrupt Diversified Brokers. On occasion, during his absence from St. Louis, defendant Symington has authorized two of his associates in legal practice, defendants Thomas J. Guilfoil and Sanford S. Neuman, to act as his agents in matters relating to his official responsibilities as Court-appointed Receiver, and thereafter as appointed Attorney for the Trustee in Bankruptcy. II. Defendants Judge Roy W. Harper, Judge James H. Meredith and Judge John K. Regan are sued in their official capacity as Judges of the United States District Court for the Eastern District of Missouri. The conduct of the Judges complained of by plaintiff herein is confined by plaintiff’s allegations to their official conduct with respect to the actions in which they had judicial responsibility. The principle is well established that judicial officers are immune from suits for money damages for acts performed in the discharge of their official duties. Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646 (1971); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Schwartz v. Weinstein, 459 F.2d 882 (8th Cir. 1972); Jacobson v. Shaefer, 441 F.2d 127 (7th Cir. 1971); Wilhelm v. Turner, 431 F.2d 177 (8th Cir. 1970), cert. denied, 401 U.S. 947, 91 S.Ct. 919, 28 L.Ed.2d 230 (1971); O’Bryan v. Chandler, 352 F.2d 987 (10th Cir. 1965), cert. denied, 384 U.S. 926, 86 S.Ct. 1444, 16 L.Ed.2d 530 (1966); Rhodes v. Meyer, 334 F.2d 709 (8th Cir. 1964); Meredith v. Van Oosterhout, 286 F.2d 216 (8th Cir. 1960), cert. denied, 365 U.S. 835, 81 S.Ct. 749, 5 L.Ed.2d 745 (1961). One of" }, { "docid": "4179064", "title": "", "text": "justification for such conduct, but the issue before us for decision is whether the complaint herein states a claim, or cause of action, under 42 U.S. C. § 1983. More specifically, does the doctrine of judicial immunity relieve the defendant judge of liability for damages incurred or caused by such incarceration? Judicial immunity is traditionally considered to be one of the best established of our common law doctrines. The United States Supreme Court has held that the passage of the 1871 Civil Rights Statutes did not abrogate the doctrine and that thus even though a judge may be accused of malicious or corrupt conduct, he still will be immune from a damage suit for acts committed “within his jurisdiction.” Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Immunity from damages is felt to be necessary to preserve the “principled and fearless decision-making” of the judiciary. Pierson v. Ray, supra, at 554, 87 S.Ct. 1213. Jurisdiction then is the test and it too has been further refined. If a judge is viewed as acting “in excess” of his jurisdiction, he still will be immune from suit. It is only when he has acted in the “clear absence of all jurisdiction over the subject-matter” that he may be sued for damages. Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L.Ed. 646 (1871); Rhodes v. Houston, D.C., 202 F.Supp. 624 (1962). Traditionally a judge’s jurisdiction has been defined rather broadly in this context in order to prevent the issue of judicial immunity from hinging on “the determination of nice questions of jurisdiction which as the Court pointed out in Bradley v. Fisher * * * can be ‘some of the most difficult and embarrassing’ that a judicial officer may be called upon to consider and decide.” Sullivan v. Kelleher, 405 F.2d 486, 487 (1 Cir., 1967). The Bradley decision, out of which all contemporary discussion of judicial immunity seems to spring, gave the following example of conduct which, although excessive, would still be considered immune from damages: “But if on the other hand a judge of" } ]

[ { "docid": "23465008", "title": "", "text": "Atlantic because it required the parent corporation to institute internal mechanisms to prevent improper sales and marketing methods. Lazar contends the settlement violates legal standards necessary for approval. Lazar claims Bell Atlantic (equated with its shareholders) received nothing while defendant directors received immunity for past conduct without paying anything, and plaintiffs’ counsel garnered a large fee award payable by Bell Atlantic, i.e., the shareholders supposedly benefitting from this derivative action. Lazar contends the nonmonetary relief se cured by the Taub plaintiffs is illusory, with Bell Atlantic merely promising to review any sales or marketing program designed by an outside consultant and assure its legality before implementation. According to Lazar, such a program already exists as a result of the Bell of Pennsylvania consumer fraud settlement. These allegations require us to assess the substantive and procedural fairness of the settlement. A. Substantive Fairness of Settlement In evaluating a district court’s determination that a settlement agreement is fair and reasonable, we consider factors applied initially to class action settlement agreements, Girsh v. Jepson, 521 F.2d 153, 156-57 (3d Cir.1975), and subsequently to derivative actions, Shlensky v. Dorsey, 574 F.2d 131, 147-49 (3d Cir.1978); In re Pittsburgh & Lake Erie R.R. Co. Sec. & Antitrust Litig., 543 F.2d 1058, 1070 (3d Cir.1976). The principal factor ... is the extent of the benefit to be derived from the proposed settlement by the corporation, the real party in interest.... The adequacy of the recovery must be considered in the light of the best possible recovery, of the risks of establishing liability and proving damages in the event the case is not settled, and of the cost of prolonging the litigation. Shlensky, 574 F.2d at 147. We also consider the response of other shareholders to the lawsuit. Id. at 148. 1. Benefit to Bell Atlantic In assessing the fairness of the agreement, that is, in comparing Bell Atlantic’s costs and benefits, we face a problem of incommensurability. To begin with, it is difficult to measure the value of the benefit (structural relief). The settlement agreement mandates structural changes in Bell Atlantic’s corporate governance: The Individual Defendants" } ]

[ { "docid": "23168071", "title": "", "text": "Rule 23, a class action cannot be settled without the approval of the court and a determination that the proposed settlement is fair, reasonable and adequate.” In re Prudential Ins. Co., 148 F.3d at 316 (internal quotation marks omitted); see Fed.R.Civ.P. 23(e)(2) (stating that a district court may approve a proposed settlement “only after a hearing and on finding that it is fair, reasonable, and adequate”). In Girsh v. Jepson, our Court articulated nine factors to be considered when determining the fairness of a proposed settlement: “ ‘(1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation.’ ” 521 F.2d 153, 157 (3d Cir.1975) (internal quotation marks and alterations omitted). “[W]here settlement negotiations precede class certification, and approval for settlement and certification are sought simultaneously, we require district courts to be even more scrupulous than usual when examining the fairness of the proposed settlement.” In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 534 (3d Cir.2004) (internal quotation marks omitted). B. Challenges to the Approval of the Zurich Settlement 1. The District Court’s Analysis The District Court granted final approval of the Zurich Settlement after concluding that the Rule 23 requirements were satisfied. Specifically, the District Court determined that the proposed Zurich Settlement Class met the standards established by Rule 23(a) because the large, nationwide class of plaintiffs “easily satisfies the numerosity requirement” of subsection (a)(1); the “many common questions of law and fact” satisfy the commonality requirement of subsection (a)(2); the claims of the named plaintiffs are “indistinguishable” from those made on behalf of the settlement" }, { "docid": "4419067", "title": "", "text": "the dismissal of the Ninth Claim. In fact, the non-settling defendants have received a benefit because the Ninth Claim has been dismissed, with prejudice, against all defendants. See JA at 1541-42. We conclude that the district court did not' abuse its discretion in approving the partial settlement. C. Adequacy of the Findings As stated, the decision whether to approve a proposed settlement of a class action is left to the sound discretion of the district court. See Walsh v. Great Atl. & Pac. Tea Co., Inc., 126 F.2d 956, 965 (3d Cir.1983); Girsh v. Jepson, 521 F.2d 153, 156 (3d Cir.1975). In Girsh, we set forth several factors a district court must consider when evaluating the adequacy, fairness, and reasonableness of a settlement: (1) the complexity, expense and likely duration of the litigation ...; (2) the reaction of the class to the settlement ...; (3) the stage of the proceedings and the amount of discovery completed ...; (4) the risks of establishing liability ...; (5) the risks of establishing damages ...; (6) the risks of maintaining the class action through the trial ...; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery ...; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation Id. at 157 (quoting City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir.1974)); see also Stoetzner v. U.S. Steel Corp., 897 F.2d 115, 118 (3d Cir.1990). Here, the non-settling defendants argue that the district court failed to provide adequate findings to support its approval of the partial settlement. In approving the partial settlement, the court stated: 2. The proposed settlement ... is fair, reasonable and adequate, is in the best interests of the Class and ITB and should be and is hereby approved, especially in light of the benefits to the Plaintiff Class and to ITB because of the complexity, expense and probable duration of further litigation, the substantial discovery and investigation conducted, the risks" }, { "docid": "15263796", "title": "", "text": "Warfarin, 391 F.3d at 534. We have explained that this “heightened standard is designed to ensure that class counsel has demonstrated sustained advocacy throughout the course of the proceedings and has protected the interests of all class members.” Prudential, 148 F.3d at 317 (internal quotation marks omitted). In Girsh v. Jepson, we articulated nine factors to be considered when determining the fairness of a proposed settlement: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; [and] (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. 521 F.2d 153, 157 (3d Cir.1975) (internal quotation marks and alterations omitted). The settling parties bear the burden of proving that the Girsh factors weigh in favor of approval of the settlement. Gen. Motors Corp., 55 F.3d at 785. The district court’s findings under the Girsh test are factual, and will be upheld unless they are clearly erroneous. Id. at 786. In Prudential, we held because of a “sea-change in the nature of class actions” after Girsh was decided thirty-five years ago, it may be helpful to expand the Girsh factors to include, when appropriate, the following non-exclusive factors: [T]he maturity of the underlying substantive issues, as measured by experience in adjudicating individual actions, the development of scientific knowledge, the extent of discovery on the merits, and other factors that bear on the ability to assess the probable outcome of a trial on the merits of liability and individual damages; the existence and probable outcome of claims by other classes and subclasses; the comparison between the results achieved by the settlement for individual class or subclass members and the results" }, { "docid": "16803552", "title": "", "text": "which are temporarily recurring. Class members also reported either temporary or enduring emotional injury. The most common psychological difficulty experienced was a fear of travel, which has hampered a few class members from properly fulfilling their job responsibilities. The class members further indicated that their injuries resulted in various degrees of pain and suffering. On April 21, 1989, the Court ordered that the pending trial, which was to begin on June 26, be bifurcated and that plaintiff’s punitive damage claims be considered first. Seeking dismissal of plaintiff’s punitive damages claims, Amtrak then filed a motion for partial summary judgment, which the Court denied on June 14. On June 19, the parties submitted a detailed pre-trial order and during the week before trial plaintiff filed six motions in limine. On the last business day before trial, following one month of intermittent negotiations, the parties agreed to a settlement and postponed the trial with leave of the Court pending its approval of the proposed settlement. II. The standards that this Court must apply to determine whether to approve a proposed class action settlement are well established. The Court, in its sound discretion, Ace Heating & Plumbing Co. v. Crane Co., 453 F.2d 30, 34 (3d Cir.1971), must find whether the proposed settlement is “fair, adequate, and reasonable.” Walsh v. Great Atlantic & Pacific Tea Co., 726 F.2d 956, 965 (3d Cir.1983). The Third Circuit has articulated several factors to guide the district court’s inquiry: (1) [T]he complexity, expense and likely duration of the litigation ...; (2) the reaction of the class to the settlement ...; (3) the stage of the proceedings and the amount of discovery completed ... ; (4) the risks of establishing liability ...; (5) the risks of establishing damages ...; (6) the risks of maintaining the class action through the trial ...; (7) the ability of the defendants to withstand a greater judgment ...; (8) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation.... Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir.1975) (quoting City of Detroit" }, { "docid": "5676211", "title": "", "text": "proposed settlement class may properly be certified under Rule 23, the court must evaluate the fairness of a proposed class action settlement under Rule 23(e). See In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 258 (3d Cir.2009) (“ ‘Even if it has satisfied the requirements for certification under Rule 23, a class action cannot be settled without the approval of the court and a determination that the proposed settlement is fair, reasonable and adequate.’ ” (quoting Prudential, 148 F.3d at 316)). Where, as here, “settlement negotiations precede class certification, and approval for settlement and certification are sought simultaneously,” the court must protect absentee class members by applying an “even more rigorous, heightened standard.” In re Pet Food Prods. Liab. Litig., 629 F.3d 333, 349-50, 2010 WL 5127661, at *12 (3d Cir. Dec. 16, 2010) (internal marks omitted) (quoting In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 534 (3d Cir.2004)). Ultimately, however, the question of fairness is a discretionary one committed to the district court. See Eichenholtz v. Brennan, 52 F.3d 478, 482 (3d Cir.1995). In Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir.1975), the Third Circuit “identified certain factors which district courts may employ in informing their discretion before granting final approval to the class action settlement.” Schwartz v. Dallas Cowboys Football Club, Ltd., 157 F.Supp.2d 561, 571 (E.D.Pa.2001) (Robreno, J.). More recently, the Third Circuit has instructed “the district court [to] make findings as to each of the nine Girsh factors in order to approve a settlement as fair, reasonable, and adequate, as required by Rule 23(e).” Pet Food Prods., 2010 WL 5127661, at *13. The Girsh factors include: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of" }, { "docid": "22572654", "title": "", "text": "Fed.R.Civ.P. 23(e)(1)(A). We have on several occasions stressed the importance of Rule-23(e), noting that “the district court acts as a fiduciary who must serve as a guardian of the rights of absent class members.” General Motors, 55 F.3d at 785 (citations and quotations omitted); see also Amchem, 521 U.S. at 623, 117 S.Ct. 2231 (noting that the Rule 23(e) inquiry “protects unnamed class members from unjust or unfair settlements affecting their rights when the representatives become fainthearted before the action is adjudicated or are able to secure satisfaction of their individual claims by a compromise”) (citations omitted). However, in cases such as this, where settlement negotiations precede class certification, and approval for settlement and certification are sought simultaneously, we require district courts to be even “more scrupulous than usual” when examining the fairness of the proposed settlement. See General Motors, 55 F.3d at 805. This heightened standard is intended to ensure that class counsel has engaged in sustained advocacy throughout the course of the proceedings, particularly in settlement negotiations, and has protected the interests of all class members. See Prudential, 148 F.3d at 317. This Court has identified nine factors to be considered when determining whether a proposed class action settlement is fair, reasonable and adequate. See Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir.1975). These factors are: (l).The complexity, expense, and likely duration of the litigation; (2) the reac tion of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Girsh, 521 F.2d at 156-57. The “decision of whether to approve a proposed settlement of a class action is left to the sound discretion of the district" }, { "docid": "16231998", "title": "", "text": "Court acts as fiduciary guarding the rights of absent class members, and must determine that the proffered settlement is ‘fair, reasonable, and adequate.’ ” Id. (quoting In re General Motors, 55 F.3d at 782). Determining whether a settlement is fair, reasonable and adequate requires the application of the nine-factor test articulated in Girsh v. Jepson, 521 F.2d 153 (3d Cir.1975). Id. (citing Girsh, 521 F.2d at 157); see e.g. Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 588 (3d Cir.1999) (court appropriately analyzed the settlement under the Girsh factors). The nine Girsh factors are: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund in light of all the attendant risks of litigation. Girsh 521 F.2d at 157; In re Cendant, 264 F.3d at 232. The proponents of a settlement bear the burden of demonstrating that the Girsh factors weigh in favor of approval of the settlement. In re Cendant, 264 F.3d at 264; In re General Motors, 55 F.3d at 785. The Circuit has explained that “[i]n order for the determination that the settlement is fair, reasonable, and adequate to survive appellate review, the [District [C]ourt must show it has explored comprehensively all relevant factors.” Lazy Oil, 166 F.3d at 588. However, “[t]he decision of whether to approve a proposed settlement of a class action is left to the sound discretion of the [District [C]ourt.” In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 317 (3d Cir.1998). In general, an award of attorneys’ fees will be reviewed “for an abuse of discretion, although there are clear error and plenary aspects in a review" }, { "docid": "22785776", "title": "", "text": "a determination that the proposed settlement is “fair, reasonable and adequate.” G.M. Trucks, 55 F.3d at 785. “Rule 23(e) imposes on the trial judge the duty of protecting absentees, which is executed by the court’s assuring the settlement represents adequate compensation for the release of the class claims.” Id. at 805 (citations omitted).' In deciding the fairness of a proposed settlement, we have said that “[t]he evaluating court must, of course, guard against demanding too large a settlement based on its view of the merits of the litigation; after all, settlement is a compromise, a yielding of the highest hopes in exchange for certainty and resolution.” Id. at 806 (citations omitted). At the same time, we have noted that cases such as this, where the parties simultaneously seek certification and settlement approval, require “courts to be even more scrupulous than usual” when they examine the fairness of the proposed settlement. Id. at 805. This heightened standard is designed to ensure that class counsel has demonstrated “sustained advocacy” throughout the course of the proceedings and has protected the interests of all class members. Id. at 806. “The decision of whether to approve a proposed settlement of a class action is left to the sound discretion of the district court.” Girsh v. Jepson, 521 F.2d 153, 156 (3d Cir.1975). Because of the district court’s proximity to the parties and to the nuances of the litigation, we accord great weight to the court’s factual findings. Bell Atlantic Corp. v. Bolger, 2 F.3d 1304, 1305-6 (3d Cir.1993) (citing Ace Heating & Plumbing Co. v. Crane Co., 453 F.2d 30, 34 (3d Cir.1971)). As the district court recognized, our decision in Girsh sets out appropriate factors to be considered when determining the fairness of a proposed settlement. Those factors are: (1) the complexity, expense and likely duration of the litigation ...; (2) the reaction of the class to the settlement ...; (3) the stage of the proceedings and the amount of discovery completed ...; (4) the risks of establishing liability ...; (5) the risks of establishing damages ...; (6) the risks of maintaining the class" }, { "docid": "17628315", "title": "", "text": "will grant Plaintiffs’ unopposed motion for class certification. B. Fairness of Settlement Terms Under Rule 23(e)(2), Fed.R.Civ. P., “[i]f the proposed settlement] would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate.” In Girsh v. Jepson, the Court of Appeals set forth the list of factors that a district court must consider when determining whether a proposed settlement is fair, reasonable, and adequate under Rule 23(e)(2). The Girsh factors are: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining a class action through the trial; (7) the ability of defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. In re AT&T Corp., 455 F.3d 160, 164-65 (3d Cir.2006) (citing Girsh, 521 F.2d at 157). The Court of Appeals has made clear that district courts must be “even more scrupulous than usual in approving settlements where no class has yet been formally certified.” In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigartion, 55 F.3d 768, 805 (3d Cir.1995). 1. Complexity, Expense and Likely Duration of the Litigation The first Girsh factor requires the Court to evaluate “the complexity, expense and likely duration of the litigation.” In re AT & T Corp., 455 F.3d at 164 (citation omitted). This factor is intended to capture the probable costs, in both time and money, of continued litigation. By measuring the costs of continuing on the adversarial path, a court can gauge the benefit of settling the claim amicably. General Motors, 55 F.3d at 812 (internal quotations and citations omitted). Considerations of the expense and duration of further litigation weigh strongly in favor of approving" }, { "docid": "22785777", "title": "", "text": "protected the interests of all class members. Id. at 806. “The decision of whether to approve a proposed settlement of a class action is left to the sound discretion of the district court.” Girsh v. Jepson, 521 F.2d 153, 156 (3d Cir.1975). Because of the district court’s proximity to the parties and to the nuances of the litigation, we accord great weight to the court’s factual findings. Bell Atlantic Corp. v. Bolger, 2 F.3d 1304, 1305-6 (3d Cir.1993) (citing Ace Heating & Plumbing Co. v. Crane Co., 453 F.2d 30, 34 (3d Cir.1971)). As the district court recognized, our decision in Girsh sets out appropriate factors to be considered when determining the fairness of a proposed settlement. Those factors are: (1) the complexity, expense and likely duration of the litigation ...; (2) the reaction of the class to the settlement ...; (3) the stage of the proceedings and the amount of discovery completed ...; (4) the risks of establishing liability ...; (5) the risks of establishing damages ...; (6) the risks of maintaining the class action through trial ...; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery ...; (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. ... Girsh, 521 F.2d at 157 (quoting City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974)) (the “Girsh factors”). The court examined each of these factors and found “the Proposed Settlement is indeed fair, reasonable, and adequate and should be approved.” Fairness Opinion, 962 F.Supp. at 534. In addition to the Girsh analysis, the district court offered other reasons for its conclusion that the settlement was fair and reasonable. Describing the proposed settlement as “exceptional,” the court noted the settlement’s structure was based on the class action settlements approved in Willson v. New York Life Ins. Co., No. 94-127804, 1995 N.Y. Misc. LEXIS 652 (N.Y.Sup.Ct. Feb. 1, 1996), aff'd, 228 A.D.2d 368, 644 N.Y.S.2d 617 (1st Dept.), and" }, { "docid": "6007631", "title": "", "text": "to this court for consolidated management also supports a finding of superiority, as it reinforces the conclusion that the claims are most efficiently addressed in a single forum by a single action. C. Fairness A settlement of a class action may not be approved unless it is “fair, adequate, and reasonable.” Walsh v. Great Atl. & Pac. Tea Co., Inc., 726 F.2d 956, 965 (3d Cir.1983); see also Eichenholtz v. Brennan, 52 F.3d 478, 482 (3d Cir.1995) (same). The Third Circuit has gone so far as to suggest that the district court must act as a fiduciary in protecting the interests of absent class members. See In re Gen. Motors Corp., 55 F.3d at 785. To allow for meaningful appellate review, the district court must explain on the record its reasons for approving a class action settlement. See Eichenholtz, 52 F.3d at 488. Relevant factors in assessing fairness are: (1) the complexity, expense, and likely duration of the litigation ...; (2) the reaction of the class to the settlement ...; (3) the stage of the proceedings and the amount of discovery completed ...; (4) the risks of establishing liability ...; (5) the risks of establishing damages ...; (6) the risks of maintaining the class action through the trial ...; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement- fund in light of the best possible recovery ...; (9) the range of reasonableness of the settlement to a possible recovery in light of all the attendant risks of litigation[.] Girsh v. Jepson, 521 F.2d 153, 156 (3d Cir. 1975) (citations omitted); see also In re Gen. Motors Corp., 55 F.3d at 785; Eichenholtz, 52 F.3d at 488. The proponents of settlement bear the burden of establishing that these factors support settlement. See In re Gen. Motors Corp., 55 F.3d at 785. In addressing a settlement, the court must reconcile two principles that are, at least superficially, in tension. On the one hand, the court must scrupulously ensure that the proposed settlement is in the best interests of class members by reference" }, { "docid": "10906962", "title": "", "text": "and the settlement and class certification are being sought simultaneously, this Proposed Settlement is subject to an even more scrupulous examination in determining its fairness. In re Warfarin Sodium Antitrust Litig., 391 F.3d at 534. Nevertheless, this Proposed Settlement is entitled to an initial presumption that it is fair because “(1) the settlement negotiations occurred at arm’s length; (2) there was sufficient discovery; (3) the proponents of the settlement are experienced in similar litigation; and (4) only a small fraction of the class objected.” In re Warfarin Sodium Antitrust Litig., 391 F.3d at 535 (quoting In re Cendant Corp. Litig., 264 F.3d 201, 232 n. 18 (3d Cir.2001)). In Warfarin, the Third Circuit held that, even though the settlement negotiations preceded the class certification, the District Court correctly applied the presumption of fairness because it found that the four factors were met. Id. Here, Class Counsel have shown by way of Friedman’s Declaration that this Settlement resulted from intensive arm’s length negotiations utilizing their unique familiarity with the facts and law of the state court cases and after having conducted exhaustive discovery. The Court also recognizes that Class Counsel are highly experienced in the prosecution of class actions, both in general terms and with insurance sales practices class actions particularly. Lastly, as explained above, only about .003% of the Class submitted objections to the Court — this is a tiny percentage of the total Class. As for the “fair, reasonable and adequate” standard, the Third Circuit has broken it down into nine factors that courts must analyze. Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir.1975) (hereinafter the “Girsh factors”). The Girsh factors include: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining a class action through trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of" }, { "docid": "16231997", "title": "", "text": "Id. at 30:9-11. Discussion A. Approval of the Settlement Lead Plaintiffs seek final approval of the Settlement as agreed to 'in the Stipulation of Settlement, signed 16 April 2001. Memorandum in Support of the Settlement at 1. Federal Rule of Civil Procedure 23(e) provides the basic framework for approval of a class action settlement. Fed. R. Civ. Pro. 23(e). The Rule provides: “A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.” Id. This rule requires a court to “ ‘independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interest of those whose claims will be extinguished.’ ” In re Cendant Corp. Litig., 264 F.3d 201, 231 (3d Cir.2001) (quoting In re General Motors Corp. Pick-Up Truck Fuel Tank Prod. Liability Litig., 55 F.3d 768, 782 (3d Cir.1995)). In conducting this inquiry, “the District Court acts as fiduciary guarding the rights of absent class members, and must determine that the proffered settlement is ‘fair, reasonable, and adequate.’ ” Id. (quoting In re General Motors, 55 F.3d at 782). Determining whether a settlement is fair, reasonable and adequate requires the application of the nine-factor test articulated in Girsh v. Jepson, 521 F.2d 153 (3d Cir.1975). Id. (citing Girsh, 521 F.2d at 157); see e.g. Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 588 (3d Cir.1999) (court appropriately analyzed the settlement under the Girsh factors). The nine Girsh factors are: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible" }, { "docid": "21968976", "title": "", "text": "multiplier is too great, the court should reconsider its calculation under the percentage-of-recovery method, with an eye toward reducing the award.” Rite Aid, 396 F.3d at 306. The lodestar cross-check, while useful, should not displace a district court’s primary reliance on the percentage-of-recovery method. See id. at 307. In Girsh v. Jepson, 521 F.2d 153 (3d Cir.1975), we set forth factors a district court should consider when reviewing a proposed class action settlement. The Girsh factors are: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining a class action through the trial; (7) the ability of defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Rite Aid, 396 F.3d at 301 n. 9 (citing Girsh, 521 F.2d at 157). The Girsh factors do not provide an exhaustive list of factors to be considered when reviewing a proposed settlement. In Prudential, we held because of a “sea-change in the nature of class actions” since Girsh was decided in 1975, district courts should also consider other potentially relevant and appropriate factors, including, among others: [T]he maturity of the underlying substantive issues, as measured by the experience in adjudicating individual actions, the development of scientific knowledge, the extent of discovery on the merits, and other factors that bear on the ability to assess the probable outcome of a trial on the merits of liability and individual damages; the existence and probable outcome of claims by other classes and subclasses; the comparison between the results achieved by the settlement for individual class or subclass members and the results achieved—or likely to be achieved—for other claimants; whether class or subclass members are accorded the right to opt out of the settlement;" }, { "docid": "2260240", "title": "", "text": "analysis of the superiority factors militates in favor of certifying the class. C. Fairness As noted, federal law requires judicial approval of the settlement of a class action lawsuit. Under Fed.R.Civ.P. 23(e), the Court should approve a class settlement if it is “fair, adequate, and reasonable.” Eichenholtz v. Brennan, 52 F.3d 478, 482 (3d Cir.1995) (internal citations omitted). The court has considerable discretion in determining whether a proposed settlement meets this standard. See id. at 482 (citing Walsh v. Great Atl. & Pac. Tea Co., Inc., 726 F.2d 956, 965 (3d Cir.1983)). A district court must consider the following factors when evaluating the fairness and adequacy of a settlement: (1) the complexity, expense and likely duration of the litigation ...; (2) the reaction of the class to the settlement ...; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability ...; (5) the risks of establishing damages ...; (6) the risks of maintaining the class action through the trial ...; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery ...; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigationf.] Girsh v. Jepson, 521 F.2d 153, 156 (3d Cir.1975) (quoting City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir.1974)). 1. Complexity, Expense and Duration of the Litigation “This factor is intended to capture the probable costs, in both time and money, of continued litigation.” In re Gen. Motors Corp., 55 F.3d at 811. Securities class actions are inherently complex, and this case is no exception, as the expense of continued litigation against AremisSoft would be substantial. See In re Ikon, 194 F.R.D. 166, 179. First, if the parties had not settled, they would have had to engage in an extensive discovery process. At a minimum, this process would have involved; review and analysis of voluminous documents, many of which would have had to be translated into English; an extensive" }, { "docid": "15263795", "title": "", "text": "for the release of the class claims.” Gen. Motors Corp., 55 F.3d at 805; see also Ehrheart v. Verizon Wireless, 609 F.3d 590, 593 (3d Cir.2010) (“The purpose of Rule 23(e) is to protect the unnamed members of the class.”) (citing Warfarin, 391 F.3d at 534). We have stressed the importance of Rule 23(e), noting that “a district court acts as a fiduciary, guarding the claims and rights of the absent class members.” Ehrheart, 609 F.3d at 593; accord Warfarin, 391 F.3d at 534; Gen. Motors Corp., 55 F.3d at 785; see also Amchem, 521 U.S. at 623, 117 S.Ct. 2231 (noting that the Rule 23(e) inquiry “protects unnamed class members from unjust or unfair settlements affecting their rights when the representatives become fainthearted before the action is adjudicated or are able to secure satisfaction of their individual claims by a compromise” (internal quotation marks omitted)). We ask district courts to apply an even more rigorous, “heightened standard” in cases “where settlement negotiations precede class certification, and approval for settlement and certification are sought simultaneously.” Warfarin, 391 F.3d at 534. We have explained that this “heightened standard is designed to ensure that class counsel has demonstrated sustained advocacy throughout the course of the proceedings and has protected the interests of all class members.” Prudential, 148 F.3d at 317 (internal quotation marks omitted). In Girsh v. Jepson, we articulated nine factors to be considered when determining the fairness of a proposed settlement: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; [and] (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. 521 F.2d 153, 157 (3d" }, { "docid": "22572655", "title": "", "text": "all class members. See Prudential, 148 F.3d at 317. This Court has identified nine factors to be considered when determining whether a proposed class action settlement is fair, reasonable and adequate. See Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir.1975). These factors are: (l).The complexity, expense, and likely duration of the litigation; (2) the reac tion of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Girsh, 521 F.2d at 156-57. The “decision of whether to approve a proposed settlement of a class action is left to the sound discretion of the district court,” and we accord great deference to the district court’s factual findings. Girsh, 521 F.2d at 156. Additionally, there is an overriding public interest in settling class action litigation, and it should therefore be encouraged. See General Motors, 55 F.3d at 784 (“the law favors settlement, particularly in class actions and other complex cases where substantial judicial resources can be conserved by avoiding formal litigation”); In re Sch. Asbestos Litig., 921 F.2d at 1333 (noting that the court encourages settlement of complex litigation “that otherwise could linger for years”). Before turning to the District Court’s application of the Girsh factors, we resolve a challenge raised by Appellants as to whether the proposed settlement is entitled to a presumption of fairness. We have previously directed a district court to apply an initial presumption of fairness when reviewing a proposed settlement where: “(1) the settlement negotiations occurred at arm’s length; (2) there was sufficient discovery; (3) the proponents of the settlement are experienced in similar litigation; and (4) only a small fraction of the class objected.” Cendant," }, { "docid": "23654002", "title": "", "text": "certification and the objector’s claim, essentially that the verdict is not supported by the evidence. II. A. This case presents an unusual situation in which an appellate court must do that which is normally done by a trial court and decide whether or not to approve the proposed settlement. The standard of review which a district court must apply in reviewing a class settlement is “whether the settlement is fair, adequate, and reasonable.” Walsh v. Great Atlantic and Pacific Tea Co., Inc., 726 F.2d 956, 965 (3d Cir.1983); accord Van Horn v. Trickey, 840 F.2d 604, 607 (8th Cir.1988); Grant v. Bethlehem Steel Corp., 823 F.2d 20, 24 (2d Cir.1987); EEOC v. Hiram Walker and Sons, Inc., 768 F.2d 884, 889 (7th Cir.1985); cert. denied, Agee v. EEOC, 478 U.S. 1004, 106 S.Ct. 3293, 92 L.Ed.2d 709 (1986); see also Reed v. General Motors Corp., 703 F.2d 170, 172 (5th Cir.1983). In Girsh v. Jepson, 521 F.2d 153 (3d Cir.1975), we set forth several factors a district court must consider when evaluating the fairness, adequacy, and reasonableness of a proposed settlement in a class action. They are (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. 521 F.2d at 157, citing City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974). In Girsh, settlement was proposed to the district court soon after discovery commenced. Here, the litigation ran its full course and the class lost. Thus, some factors which a trial court is required to consider in evaluating a proposed settlement are inapposite when," }, { "docid": "23681629", "title": "", "text": "responsibility of protecting absent class members,” and must be “assur[ed] that the settlement represents adequate compensation for the release of the class claims.” Pet Food, 629 F.3d at 349 (citation & quotations omitted); see also Ehrheart, 609 F.3d at 593 (stressing that “[t]he purpose of Rule 23(e) is to protect the unnamed members of the class,” and that a “district court acts as a fiduciary” for absent class members) (citing Warfarin, 391 F.8d at 534). “[W]here settlement negotiations precede class certification, and approval for settlement and certification are sought simultaneously, district courts should be even ‘more scrupulous than usual’ when examining the fairness of the proposed settlement.” Warfarin, 391 F.3d at 534 (quoting GM Truck, 55 F.3d at 805). In assessing the fairness of a proposed settlement, we have articulated nine well-established primary factors for a district court to consider in conducting its inquiry: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; [and] (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Pet Food, 629 F.3d at 350 (quoting Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir.1975)). (internal quotation marks and alterations omitted). Furthermore, a district court may consider several other factors “illustrative of additional inquiries that in many instances will be useful for a thoroughgoing analysis of a settlement’s terms,” id.: [T]he maturity of the underlying substantive issues, as measured by experience in adjudicating individual actions, the development of scientific knowledge, the extent of discovery on the merits, and other factors that bear on the ability to assess the probable outcome of a trial on the merits of liability and individual damages;" }, { "docid": "16803553", "title": "", "text": "approve a proposed class action settlement are well established. The Court, in its sound discretion, Ace Heating & Plumbing Co. v. Crane Co., 453 F.2d 30, 34 (3d Cir.1971), must find whether the proposed settlement is “fair, adequate, and reasonable.” Walsh v. Great Atlantic & Pacific Tea Co., 726 F.2d 956, 965 (3d Cir.1983). The Third Circuit has articulated several factors to guide the district court’s inquiry: (1) [T]he complexity, expense and likely duration of the litigation ...; (2) the reaction of the class to the settlement ...; (3) the stage of the proceedings and the amount of discovery completed ... ; (4) the risks of establishing liability ...; (5) the risks of establishing damages ...; (6) the risks of maintaining the class action through the trial ...; (7) the ability of the defendants to withstand a greater judgment ...; (8) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation.... Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir.1975) (quoting City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974)). The Court, having considered the Girsh factors, finds that the proposed settlement agreement in this action is fair, adequate, and reasonable. First, further litigation in this case clearly would present issues that would be costly to resolve and that could result in protracted proceedings. Most of the evidence upon which plaintiff intended to rely to prove the outrageous conduct necessary to recover punitive damages was circumstantial and accretive. Moreover, the case would have involved difficult questions of admissibility of this evidence. For example, to establish that Tom Connor was under the influence of intoxicants on the morning of the accident, plaintiff would have relied on occurrence witnesses, the positive drug test conducted three and one-half days after the wreck, Mr. Connor’s poor work attendance record, his flight from the scene, and his invocation of the fifth amendment. The last fact in particular raises delicate issues of probity and unfair prejudice. See Fed.R.Evid. 403. Plaintiff also would have utilized, at considerable expense, expert witnesses to show that" } ]

[ { "docid": "22057793", "title": "", "text": "ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before BIRCH, DUBINA and MARCUS, Circuit Judges. PER CURIAM: This case is before the Court for consideration in light of United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We previously affirmed Appellant’s sentence. See United States v. Dockery, 120 Fed.Appx. 785 (11th Cir.2004) (unpublished). The Supreme Court vacated our prior decision and remanded the case to us for further consideration in light of Booker. On appeal, Appellant challenges his 87-month sentence, imposed pursuant to his guilty plea, for knowingly transporting child pornography through the Internet by computer, in violation of 18 U.S.C. § 2252A(a)(l). In his initial brief, Dockery argued that the- district court erred by enhancing his sentence, pursuant to U.S.S.G. § 2G2.2(b)(4), because he did not engage in a pattern of activity involving the attempted sexual abuse or exploitation of a minor, within the meaning of § 2G2.2(b)(4). More specifically, Appellant asserted that because he did not show up for Internet-arranged meetings with the minors, he took no “substantial step” toward the alleged criminal conduct. Appellant did not raise a constitutional challenge to his sentence, nor did he assert error based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), or any other case extending or applying the Apprendi principle. In United States v. Ardley, 242 F.3d 989 (11th Cir.), cert. denied, 533 U.S. 962, 121 S.Ct. 2621, 150 L.Ed.2d 774 (2001), after the Supreme Court’s remand with instructions to reconsider our opinion in light of Apprendi, we observed the following: Nothing in the Apprendi opinion requires or suggests that we are obligated to consider an issue not raised in any of the briefs that appellant has filed with us. Nor is there anything in the Supreme Court’s remand order, which is cast in the usual language, requiring that we treat the ease as though the Apprendi issue had been timely raised in this Court. In the absence of any requirement to the contrary in either Apprendi or in the order remanding this case to us," } ]

[ { "docid": "22770444", "title": "", "text": "ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before KING, Chief Judge, and REAVLEY and GARZA, Circuit Judges. PER CURIAM: The Supreme Court has granted Defendant-Appellant Taylor’s petition for writ of certiorari, vacated our previous judgment in this case, and remanded the case to this court for further consideration in light of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Previously, we had affirmed Taylor’s conviction and sentence. See United States v. Taylor, 100 Fed.Appx. 305, 307 (5th Cir.2004) (per curiam) (unpublished). Following our judgment, Taylor filed a petition for certiorari, in which he challenged for the first time the constitutionality of the Sentencing Guidelines as applied to him. Having reconsidered our decision pursuant to the Supreme Court’s instructions, we reinstate our judgment affirming the conviction and sentence. We recently held in United States v. Hernandez-Gonzalez, 405 F.3d 260 (5th Cir.2005), that, absent extraordinary circumstances, we will not consider Booker issues raised for the first time in a petition for rehearing. See also United States v. Sutherland, 428 F.2d 1152, 1158 (5th Cir.1970) (per curiam); United States v. Ardley, 273 F.3d 991 (11th Cir.2001) (en banc) (holding that even a remand by the Supreme Court for reconsideration in light of an intervening Court opinion does not require the court to consider an argument raised for the first time in a petition for certiorari). It would be illogical for this court, absent exceptional circumstances, to consider an argument raised for the first time in a petition for certiorari after having previously held that we will not consider such an argument in a petition for rehearing. Accordingly, absent extraordinary circumstances, we will not consider Taylor’s Booker-related arguments. Because Taylor did not raise his Booker-related arguments in the district court, had he raised these challenges in this court before the decision issued on his direct appeal, we would have reviewed them for plain error. United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005). There is no plain error here, however, because Taylor points to no evidence in the record suggesting that the district court" }, { "docid": "15469194", "title": "", "text": "ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before HULL and MARCUS, Circuit Judges, and HANCOCK , Judge. PER CURIAM: This case is before this Court for the second time. We previously affirmed Smith’s sentence in United States v. Smith, 385 F.3d 1342 (11th Cir.2004). On February 28, 2005, the Supreme Court granted certiorari, vacated our September 27, 2004 judgment, and remanded the case for reconsideration in light of United States v. Booker, 543 U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Having now considered Smith’s case in light of Booker, we affirm Smith’s sentence not only for the reasons stated in our prior opinion, but also for those explained below. We first review the procedural history of this case prior to Booker. I. BACKGROUND After pleading guilty, Bryan Winfred Smith was sentenced to 151 months’ imprisonment for bank robbery. At his 2003 sentencing in the district court, Smith did not raise any constitutional claim to a jury trial on sentencing factors nor any constitutional issue based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). On direct appeal in 2004, Smith argued only that the district court misapplied the Guidelines in concluding that he was a career offender under U.S.S.G. § 4Bl.l(a). According to Smith, his prior state convictions had been “functionally consolidated” for sentencing and were therefore “related” pursuant to § 4AI .2(a)(2). Thus, Smith argued that he did not have two prior convictions for purposes of § 4Bl.l(a). In his initial brief and reply brief on direct appeal during 2004, Smith did not raise any constitutional claim to a jury trial on sentencing factors or any constitutional issue based on Apprendi. After Smith’s initial and reply briefs on direct appeal were filed, Smith filed a “Motion for Leave to File a Substitute Initial Brief’ attempting to raise a constitutional claim to a jury trial as to the use of his prior convictions as sentencing factors. On September 8, 2004, this Court entered an order denying Smith’s motion based on our well-established prudential rule that issues not timely raised" }, { "docid": "11070085", "title": "", "text": "was an informant at the time of the assault. Had Baker been merely charged with helping Murphy beat up Hayden, there would be no question that a guilty verdict would be sustainable. But a vital link between the evidence and the charge in the indictment is missing. Judge Murphy was correct in setting aside the verdicts. One final matter before we leave this case. The government argued that if the convictions of Ms. Baker on counts 1 and 2 were reinstated, the sentence imposed upon Mr. Murphy should be vacated and his case remanded to the district court so it could consider a leadership-role upward departure under the guidelines as to him. Murphy argued that such a procedure would be violative of the rule announced in Blakely v. Washington, — U.S. —, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), as interpreted by us in United States v. Booker, 375 F.3d 508 (2004). Subsequently, of course, the Supreme Court changed the rules of the game in United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), holding that the federal sentencing guidelines were no longer mandatory. Although Murphy has not directly challenged his sentence and Baker has limited her involvement on appeal to resisting the efforts of the government to reinstate her convictions, we think both, because they were sentenced under the old unconstitutional regime, should, in the interest of justice, get the benefit of the procedures we recently announced in United States v. Paladino, 401 F.3d 471 (7th Cir.2005), if they so desire. (In this regard, see United States v. Macedo, 2005 WL 851501, 406 F.3d 778 (7th Cir. Apr.14, 2005), where we held that raising a Booker argument on a petition for rehearing in a direct appeal is sufficient to get the benefit of Paladino.) Accordingly, to summarize, we affirm Murphy’s convictions, reject the challenge to the order vacating the convictions of Baker on counts 1 and 2, and order both Murphy and Baker to tell us, within 14 days, whether they want us to issue a limited remand, per Paladino, to the district court" }, { "docid": "4497823", "title": "", "text": "ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before EDMONDSON, Chief Judge, and DUBINA, and COX, Circuit Judges. PER CURIAM: The Supreme Court vacated our previous opinion in this ease, United States v. Pipkins, 378 F.3d 1281 (11th Cir.2004), vacated at — U.S.-, 125 S.Ct. 1617, 161 L.Ed.2d 275 (2005), and remanded this case for further consideration in light of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We directed the parties to file supplemental briefs to explain when the Defendants first raised the Booker issue, whether the issue was timely raised before this court, and how the Booker decision applies to this case. In their supplemental briefs, the Defendants contend that we should vacate their sentences and remand their cases to the district court for re-sentencing in light of Booker. The Defendants note that they first challenged the constitutionality of their sentences in their Petitions for Rehearing En Banc. In these Petitions, the Defendants asserted that the district court made various factual findings which the court used to enhance their sentences. They argue that these findings were not found by a jury beyond a reasonable doubt, as required by Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2005). Thus, the Defendants contend they are entitled to re-sentencing. The Government responds that the Defendants’ constitutional arguments were not timely raised before this court because they were not included in their initial briefs. Because we conclude that the Defendants’ constitutional arguments were not timely raised, we reinstate our previous opinion affirming the Defendants’ convictions and sentences. The Defendants, Charles Floyd Pipkins and Andrew Moore, two Atlanta pimps, were convicted of conspiracy to violate the Racketeering Influenced Corrupt Organizations Act (“RICO”), and other offenses. Pipkins’ total sentence of imprisonment was 30 years and Moore’s total sentence was 40 years. We must first determine whether the Defendants’ constitutional challenges to their sentences were timely. The well-established law in our circuit requires that issues be raised in the parties’ initial brief. See United States v. Levy, 379 F.3d 1241 (11th Cir.), reh’g" }, { "docid": "22400919", "title": "", "text": "Burns, in his September 2004 objections to the Presentence Report, objected, under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which had been handed down June 24, 2004, to the use of the Federal Sentencing Guidelines (Guidelines) to determine his sentence. At sentencing on November 3, 2004, the district court overruled Burns’s objection based on this court’s July 12, 2004 decision in United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004), vacated, 543 U.S. 1101, 125 S.Ct. 1003, 160 L.Ed.2d 1006 (2005), that Blakely did not apply to the Guidelines. With an offense level of 15 and a criminal history category of I, the applicable Guidelines range for Burns was 18 to 24 months’ imprisonment and three to five years’ supervised release. The district court, following the Guidelines, sentenced Burns to a twenty-four month term of imprisonment and a three-year term of supervised release. Burns was also ordered to pay restitution, jointly and severally with his co-offenders, in the amount of $500,137.03. The remaining counts of the indictment were then dismissed as to Burns pursuant to the plea agreement. Burns at no time sought to withdraw his plea. On November 4, 2004, Burns timely filed his notice of appeal. Burns’s appeal relies on the Supreme Court’s January 12, 2005 decision in the consolidated cases of United States v. Booker and United States v. Fanfan, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which, among other things, held that Blakely did apply to the Guidelines. In his original brief, Burns argued that his appeal waiver did not apply to his appeal “because a defendant cannot waive a right that did not exist at the time of the supposed waiver.” Pointing to the appeal waiver, the government promptly filed a motion to dismiss, which was denied by a motions panel of this court without comment. The government then filed a motion for reconsideration in light of United States v. McKinney, 406 F.3d 744 (5th Cir.2005). In denying the government’s motion for reconsideration, the motions panel noted that the McKinney opinion was not on point" }, { "docid": "22944505", "title": "", "text": "as the concurrent sentence should be vacated. See Rutledge v. United States, 517 U.S. 292, 307, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996). Last, we consider whether the trial court violated Mr. Brooks’ Sixth Amendment rights and erred in calculating his sentence by using a drug quantity not determined by the jury. Because this issue was not raised before the district court, we review for plain error. Fed.R.Crim.P. 52(b). Mr. Brooks claims that his sentence violated both Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because “[t]he jury was not given an instruction regarding the drug quantity, other than to make a determination regarding whether [Mr.] Brooks was found to have manufactured or to have attempted to manufacture more than 5 grams of methamphetamine.” Aplt. Br. at 28. Although Mr. Brooks has not sought supplemental briefing to address United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), raising his Sixth Amendment issue pursuant to Blakely in his opening brief is sufficient to invoke Booker. See United States v. Trujillo-Terrazas, 405 F.3d 814, 816 (10th Cir.2005); see also Booker, 125 S.Ct. at 769 (stating that “both [its] Sixth Amendment holding and [its] remedial interpretation of the Sentencing Act” must be applied to all cases on direct review). In Booker, the Supreme Court stated that sentencing courts may commit two types of error when applying the then-mandatory Guidelines — constitutional and non-constitutional error. 125 S.Ct. at 769. Constitutional Booker error occurs when a court “reflies] upon judge-found facts, other than those of prior convictions, to enhance a defendant’s sentence mandatorily,” in violation of the Sixth Amendment. United States v. Gonzalez-Huerta, 403 F.3d 727, 731 (10th Cir.2005) (en banc). A court commits non-constitutional Booker error when it “applies] the Guidelines in a mandatory fashion,, as opposed to a discretionary fashion, even though the resulting sentence was calculated solely upon facts that were admitted by the defendant, found by the jury, or based upon the fact of a prior" }, { "docid": "22111363", "title": "", "text": "is required. See id. (“[T]he court offered no indication of whether it might have imposed a different sentence had it considered the § 3553(a) factors under an advisory Guidelines regime.... The prejudice burden therefore falls on the Government, and the sentencing court’s silence must be interpreted in favor of Rodriguez. Accordingly, we must conclude that Rodriguez was prejudiced when the court treated the Guidelines as mandatory. We are thus obliged to vacate Rodriguez’s sentence and remand for further proceedings.”). VIII. Accordingly, for the foregoing reasons, we hereby affirm Williams’s conviction. However, because the district court erred by treating the Guidelines as mandatory and there is no indication in the record that the court would have imposed the same sentence under an advisory system, we vacate Williams’s sentence and remand for resentencing. AFFIRMED IN PART, VACATED IN PART, AND REMANDED . Williams’s trial took place in September 2004, after the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), but before its decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). . After deciding Booker, the Supreme Court vacated Hammoud. See Hammoud v. United States, 543 U.S. 1097, 125 S.Ct. 1051, 160 L.Ed.2d 997 (2005). . Although § 921(a)(3) does not require that the firearm be operable when the defendant possessed it, see United States v. Adams, 137 F.3d 1298, 1300 (11th Cir.1998) (per curiam); United States v. Willis, 992 F.2d 489, 491 n. 2 (4th Cir.1993), an operable firearm certainly meets the statutory definition. . We note that the district court did not rely on the adoptive admissions analysis when admitting the evidence. The court simply overruled, with little explanation, Williams's hearsay objection. . Even if the question could be viewed as hearsay, it demonstrated Bartee’s state of mind when he asked the question and thus would be admissible as an exception to the prohibition against hearsay. See Fed.R.Evid. 803(3). .In his reply brief, Williams argues in passing that his niece’s testimony was likewise inadmissible as an adoptive admission. See Reply Brief at 12. Because" }, { "docid": "22317014", "title": "", "text": "ANDERSON, Circuit Judge: The panel’s opinion in this case issued on August 18, 2004, and was published in 381 F.3d 1070 (11th Cir.2004). A petition for rehearing en banc was filed. We construe it also as a petition for rehearing by the original panel. We now grant panel rehearing, vacate the previous opinion published in 381 F.3d 1070, and substitute in its stead the instant opinion. In this opinion, we focus on Duncan’s sentencing argument, reviewing for plain error in light of the Supreme Court’s decision in United States v. Booker, 542 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We conclude that Duncan cannot overcome the third prong of plain error analysis because he cannot show an error that affectéd his substantial rights. See United States of America v. Rodriguez, 398 F.3d 1291, (11th Cir.2005). In his initial brief on appeal, Duncan argued that the jury and not the district court judge should have made the determination of the type and quantity of drugs involved in a drug conspiracy for the purpose of sentencing. After the initial briefing in this case, the Supreme Court decided Blakely v. Washington, 542 U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and accordingly, we ordered supplemental briefing on the issue.' In Blakely, the Supreme Court applied the rule set out in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and held that the imposition—based solely on the sentencing judge’s factual findings — of a sentencing enhancement above the range indicated in the State of Washington’s Sentencing Reform Act violated Blakely’s Sixth Amendment rights because the facts supporting the findings were neither admitted by Blakely nor found by a jury. In our initial opinion, we reviewed Duncan’s sentence for plain error and concluded that the district court could not have committed “plain” error by failing to apply Blakely in the context of the Federal Sentencing Guidelines (“Guidelines”). After our initial opinion, the Supreme Court decided United States v. Booker, — U.S. -, 135 S.Ct. 738, 160 L.Ed.2d 621 (2005). In Booker, the Supreme Court issued two" }, { "docid": "19098049", "title": "", "text": "discouraged by Strickland.” Range v. United States, 25 F.3d 1049 (table), 1994 WL 252643, at *4 (6th Cir. June 9, 1994). KAREN NELSON MOORE, Circuit Judge, dissenting. In October 2002, Petitioner-Appellant Thomas Albert Nichols received a sentence of 405 months of imprisonment under the then-mandatory United States Sentencing Guidelines. Nichols’s Guidelines range was enhanced based on facts found solely by the sentencing judge. Even though, at the time of Nichols’s sentencing, the constitutionality of the Guidelines had been called into serious question by a majority of the Justices in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Nichols’s counsel made no Apprendi objection before the sentencing court. Even though, while Nichols’s direct appeal was still pending, the Supreme Court granted certiorari in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), to determine whether Apprendi applied to determinate statutory sentencing schemes, Nichols’s counsel failed to raise any Apprendi argument during Nichols’s appeal. Finally, even though Nichols could have filed a timely petition for rehearing when the Supreme Court decided Blakely, Nichols’s counsel failed to file either a petition for rehearing in this court or a petition for certiorari. As a result of his counsel’s failure to make any argument at any point that Nichols was sentenced in violation of the Sixth Amendment, Nichols’s sentence became final before the Supreme Court held in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that increasing a defendant’s mandatory Guidelines range based on judge-found facts violates the Sixth Amendment right to a jury trial. The attorney for Nichols’s codefendant Carlton Smith, on the other hand, did file a petition for rehearing and a petition for certiorari in light of Blakely, and Smith’s sentence was reduced on remand. Nichols now argues that, based on Apprendi Blakely, and the Supreme Court’s grant of certiorari in Booker, his counsel should have raised Sixth Amendment challenges to the sentencing enhancements at various stages of his trial and appeal. Because this case presents a unique combination of circumstances in which Apprendi followed by" }, { "docid": "22249862", "title": "", "text": "(2003). Except for finding that Garrett’s judgment of conviction must be amended to remove reference to 21 U.S.C. § 860, we AFFIRM the convictions of Martinez, Garrett, Harris, and Henderson on one count of conspiracy to distribute and to possess with intent to distribute cocaine, cocaine base, and marijuana. III. Defendants have raised various challenges to their sentences, some of which the government has conceded, and all of the defendants seek remand for resentenc-ing in accordance with United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Although this appeal was filed pre-Booker, each of the defendants asserted a Sixth Amendment claim in reliance on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Defendants’ reply and supplemental briefs address application of Booker to their sentences, and at oral argument the government conceded that resentencing is required. Our review is for plain error because none of the defendants raised Sixth Amendment claims in the district court. United States v. Oliver, 397 F.3d 369 (6th Cir.2005). The’ Supreme Court in Booker held that the Sixth Amendment applies to the federal sentencing guidelines such that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” 125 S.Ct. at 756. Remand for resentencing is required under Booker when a defendant’s sentence was imposed in violation of the Sixth Amendment. Oliver, 397 F.3d at 377-78; see also United States v. McDaniel, 398 F.3d 540, 547-50 (6th Cir.2005). In addition, the remedy adopted in Booker, excising the provision making the guidelines mandatory, was held to apply to all defendants who were sentenced under the mandatory guideline scheme even if they did not suffer a Sixth Amendment violation. In the absence of a Sixth Amendment violation, a defendant sentenced under the mandatory guidelines is entitled to resentencing under Booker unless there is evidence in the record to rebut the presumption of prejudice." }, { "docid": "11727699", "title": "", "text": "district court’s order would have put the government on notice that the statute of limitations was or would be an issue, such that would have required it to take an affirmative action to ensure that the statute of limitations was not waived. As such, we find no error in the district court’s judgment that the government did not waive the statute of limitations. III. Accordingly, the district court’s judgment denying and dismissing Hernandez’s § 2255 motion is affirmed. . The Honorable Ronald E. Longstaff, Chief Judge, United States District Court for the Southern District of Iowa. . The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a one-year statute of limitations for § 2255 motions for post conviction relief. Hernandez’s time began to run when his conviction became final on October 31, 2001. See 28 U.S.C. § 2255 (2000). . Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). . Hernandez refers to three United States Supreme Court cases in his sentencing arguments: United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Blakely, 124 S.Ct. at 2531; and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The certificate of ap-pealability was obtained by Hernandez prior to the Supreme Court's decision in Booker but post-Blakely. His brief was filed subsequent to the Booker decision and his sentencing arguments include Booker. . All references to the United States Code provisions regarding Hernandez's offenses and punishment are to those in effect in 1997 and controlling at the time that the offenses were committed in 1997 and 1998 and which would have been used at his sentencing. . While Hernandez does not raise a specific Apprendi challenge to his 168-month (14-year) sentence of incarceration, we would also find no Apprendi violation in that sentence because the maximum sentence provided by the statute is 20 years for the \"offense simpliciter.” See 21 U.S.C. § 841(b)(1)(C); Aguayo-Delgado, 220 F.3d at 933." }, { "docid": "22319318", "title": "", "text": "KOZINSKI, Circuit Judge: We consider two questions left unanswered by United States v. Ameline, 409 F.3d 1073 (9th Cir.2005):(1) By what standard do we review a district court’s determination that a defendant’s sentence would not have been materially different, had it known that the Guidelines were advisory rather than mandatory? And, (2) may a defendant raise new claims of error during the course of an Ameline remand? Facts Defendant was sentenced during the interregnum between Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and the tortured posture of his case illustrates the difficulties the courts of appeals have faced in reviewing such sentences. Defendant was convicted on four counts relating to his involvement in a methamphetamine operation and sentenced to 168 months, a sentence at the low end of the Guidelines range. He appealed on the sole ground that the district court erred in denying his motion to suppress certain evidence. We affirmed in an opinion filed the day before Booker was handed down. See United States v. Combs, 394 F.3d 739 (9th Cir.2005). Defendant petitioned for rehearing, claiming Booker error because the district judge had acted under the misapprehension that the Guidelines were mandatory rather than advisory. Because defendant had not raised a sentencing claim below, this belated claim could be reviewed — if at all — only for plain error. We therefore amended our opinion to include a remand to the district court for a determination of whether the error was prejudicial, as directed by Ameline. See United States v. Combs, 412 F.3d 1020 (9th Cir.2005). At no time during his first appeal did defendant challenge the reasonableness of his sentence. Our ruling today applies only to defendants in Combs’s particular situation. On remand, the district court invited the parties to file memoranda addressing whether resentencing was warranted. Combs argued that the pre-Booker sentencing statute had precluded the district judge from ordering the sentence that would best serve the policy goals of 18 U.S.C. § 3553(a), and asked" }, { "docid": "8470659", "title": "", "text": "have recognized there may be circumstances in which we might apply the plain error rule to suppression issues raised for the first time on appeal, see United States v. Brook, 438 F.3d 1231, 1240 & n. 4 (10th Cir.2006); Meraz-Peru, 24 F.3d at 1198; United States v. Dewitt, 946 F.2d 1497, 1501-02 (10th Cir.1991), we decline to do so here where the issue was not raised in the regular course of briefing. . Absent the ACCA enhancement, Mr. Michel's maximum sentence for being a felon in possession under 18 U.S.C. § 922(g)(1) would have been ten years. See 18 U.S.C. § 924(a)(2). . Prior to sentencing, Mr. Michel challenged the application of the ACCA on the basis that any determination that his prior violent felonies \"occurred on occasions different from one another,” 18 U.S.C. § 924(e)(1), was a fact other than that of a prior conviction and thus had to be found by a jury beyond a reasonable doubt pursuant to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi. On appeal, he notes the Supreme Court's extension of Blakely to federal sentencing in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). . As we did in United States v. Moore, 401 F.3d 1220, 1224 (10th Cir.2005), we give short shrift to Mr. Michel’s argument that the prior conviction exception laid out in Appren-di, which found its genesis in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is in decline. Unless and until the Supreme Court determines otherwise, we will continue to follow the rule laid out in Almendarez-Torres. . Mr. Michel does not challenge the accuracy of the facts relied upon by the district court. Rather, he claims that his three convictions should, as a matter of law, be treated as one event under 18 U.S.C. § 924(e)(1)." }, { "docid": "22131391", "title": "", "text": "MARCUS, Circuit Judge: Miguel Orduno-Mireles appeals his 46-month sentence, imposed after he pled guilty to illegally reentering the United States after being deported subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). On appeal, he presents the following arguments: (1) the district court erred when it found that he previously was deported after a conviction for a felony that is a “crime of violence,” thus qualifying him for a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A), and (2) the § 2L1.2(b)(l)(A) enhancement was unconstitutional because it was based on facts that were neither charged in his indictment nor proven to a jury, in violation of Blakely v. Washington, 542 U.S. — , 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which extended to the federal Sentencing Guidelines recently in United States v. Booker, 543 U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We review de novo a district court’s determination that a prior conviction qualifies as a crime of violence for purposes of an enhancement under U.S.S.G. § 2L1.2(b)(1)(A). United States v. Wilson, 392 F.3d 1243, 1245 (11th Cir.2004). As for Orduno-Mireles’s Blakely/Booker argument, since he raises it for the first time of appeal, we review the issue only for plain error. See United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993); United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005) (applying plain error review to newly raised Blakely/Booker claim). We will correct plain error only where (1) there is an error; (2) the error is plain or obvious; (3) the error affects the defendant’s substantial rights in that it was prejudicial and not harmless; and (4) the error seriously affects the fairness, integrity, or public reputation of a judicial proceeding. See United States v. Chisholm, 73 F.3d 304, 307 (11th Cir.1996). Upon thorough review of the record, as well as careful consideration of the parties’ briefs, we find no reversible error and therefore we affirm. First, Orduno-Mireles argues that neither of his two prior felony convictions, one-for unlawful sexual activity'with certain minors and the other" }, { "docid": "22558025", "title": "", "text": "PAEZ, Circuit Judge. Jesus Adrian Beng-Salazar (“Beng”) appeals his conviction and sentence for illegal reentry into the United States in violation of 8 U.S.C. § 1326. In a separate memorandum, we affirm Beng’s conviction. In this opinion, we consider Beng’s arguments that his sentence violated the Sixth Amendment and ran afoul of the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Beng was sentenced under the now-defunct mandatory Guidelines regime. We hold that Beng’s timely Sixth Amendment objections, based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), were sufficient to preserve his Booker challenge to the court’s imposition of his sentence using the erstwhile mandatory Guidelines. We vacate Beng’s sentence and remand for resentencing under the now-advisory Guidelines system. I. Background In July 2004, a jury found Beng guilty of illegal reentry. At the time of his sentencing in October 2004, the Supreme Court had decided Apprendi and Blakély, but not Booker. In Apprendi, the Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. In Blakely, the Court relied on Apprendi to hold that Washington State’s sentencing procedure violated the Sixth Amendment because it permitted a defendant to be sentenced above a standard' sentencing range based on facts not found by a jury beyond a reasonable doubt. 542 U.S. at 301-05, 124 S.Ct. 2531. It was not until January 2005, however, that the Court in Booker held that “the Sixth Amendment as construed in Blakely does apply to the [federal] Sentencing Guidelines,” 543 U.S. at 226-27, 125 S.Ct. 738, and crafted the remedy of converting the. mandatory federal Sentencing Guidelines into advisory guidelines, id. at 245, 125 S.Ct. 738. Beng’s Presentence Report (“PSR”) recommended an increase in Beng’s base offense level by sixteen levels," }, { "docid": "18225088", "title": "", "text": "to anticipate the new rule of law in his opening brief. See United States v. Levy, 391 F.3d 1327, 1328 (11th Cir.2004) (denying appellant’s petition for rehearing after his conviction had become final because he had failed to raise a claim under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), until his petition for rehearing); United States v. Dockery, 401 F.3d 1261, 1262-63 (11th Cir.2005) (holding that the appellant had abandoned his claim under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), by failing to address the claim Booker created in his opening brief on appeal); United States v. Vanorden, 414 F.3d 1321, 1323 (11th Cir.2005) (holding that appellant had abandoned any Apprendi-Blakely-Booker claim by failing to brief it); United States v. Higdon, 418 F.3d 1136, 1137 (11th Cir. 2005) (Hull, J., concurring in denial of rehearing en banc) (declining to reconsider panel’s denial of appellant’s motion to file a supplemental brief raising a claim under Blakely). Although these decisions would seem at first blush to bar our consideration of the State’s argument that the Court of Criminal Appeals did not adjudicate a federal constitutional claim, I submit that the prudential rule on which they are based must give way to the policies AEDPA seeks to implement, namely the interests of federalism, comity and finality of state criminal convictions. See Federal Habeas Corpus Reform: Eliminating Prisoners’ Abuse of the Judicial Process: Hearing before the S. Comm, on the Judiciary, 104th Cong. 1, 10, 23, 30-31 (1995) (statements of Sen. Orrin Hatch; Lee Chancellor, Vice President, Citizens for Law and Order, Oakland, Calif.; Sen. Strom Thurmond; and Daniel E. Lungren, California Attorney General). As I have written before, waiver “applies to the right of a litigant to have his claim heard .... The scope of a petitioner’s rights has no bearing on this court’s power. It is beyond dispute that, in general, we have the power to consider issues that a party fails to raise on appeal, even though the petitioner does not have the right to demand such consideration.”" }, { "docid": "23268445", "title": "", "text": "ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before ANDERSON, HULL and PRYOR, Circuit Judges. PER CURIAM: This case is before this Court for the third time. We previously affirmed Levy’s sentences in United States v. Levy, 374 F.3d 1023 (11th Cir.2004), and denied Levy’s petition for rehearing in United States v. Levy, 379 F.3d 1241 (11th Cir.2004). On June 6, 2005, the Supreme Court vacated our judgment and remanded Levy’s case to us for further consideration in light of United States v. Booker, 543 U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See Levy v. United States, 543 U.S.-, 125 S.Ct. 2542, 162 L.Ed.2d 272 (2005). Having now considered Levy’s case in light of Booker, we affirm Levy’s sentences not only for the reasons stated in our prior opinions but also for those explained below. I. BACKGROUND After this Court affirmed Levy’s sentences in United States v. Levy, 374 F.3d 1023 (11th Cir.2004), the Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which extended the constitutional rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to the Washington State Sentencing Guidelines. As we all are aware, the Supreme Court again extended Apprendi to the United States Sentencing Guidelines in Booker. After Blakely, but before Booker, Levy filed a petition for rehearing in this Court asserting, for the first time, that he had a right to a jury trial regarding his federal sentencing enhancements. In his petition for rehearing, Levy conceded that at no time prior to his petition for rehearing-not in the district court and not in his briefs on appeal-did he raise any argument regarding the constitutionality of the sentencing guidelines or any right to a jury trial on his sentencing enhancements or any arguments guounded in Apprendi. On August 3, 2004, this Court denied Levy’s petition for rehearing based on this Court’s long-standing prudential rule of declining to entertain issues not raised in an appellant’s initial brief on appeal but raised for the first time in a petition" }, { "docid": "8512953", "title": "", "text": "BOWMAN, Circuit Judge. Brian Fay Jeremiah pleaded guilty to a violation of 18 U.S.C. § 2425 (2000) for using interstate facilities to transmit information about a minor “with the intent to entice, encourage, offer, or solicit” criminal sexual activity, and the District Court sentenced Jeremiah to twenty-seven months’ imprisonment. Jeremiah appealed his sentence, raising a challenge based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). On appeal, a panel of this Court vacated Jeremiah’s sentence and remanded his case to the District Court for resentencing. United States v. Jeremiah, 135 Fed.Appx. 3 (8th Cir.2005) (per curiam) (unpublished). At his' resentencing hearing, Jeremiah requested a variance from the advisory Guidelines range based on the potential disparity between the sentence he might have received had he been convicted in Arkansas state court and the sentence he faced as a result of his conviction on the federal charge. The District Court refused to vary from the advisory Guidelines range on this basis, sentencing Jeremiah to the same twenty-seven-month term of imprisonment originally imposed. Jeremiah appeals, arguing that the District Court was required to consider the potential federal/state sentencing disparity under 18 U.S.C. § 3553(a)(6) (2000) and that the court’s failure to do so resulted in an unreasonable sentence. We affirm. Although application of the Sentencing Guidelines is- no longer mandatory, district courts are still required to consult the Guidelines and take them into account in calculating a defendant’s sentence. United States v. Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). A district court must calculate a defendant’s advisory Guidelines sentencing range based on his total offense level, criminal history category, and any appropriate departures. See United States v. Shannon, 414 F.3d 921, 923 (8th Cir.2005). The court may also vary from the advisory Guidelines range based on the factors set forth in 18 U.S.C. § 3553(a) as long as the resulting sentence is reasonable. See Booker, 543 U.S. at 261, 125 S.Ct. 738; United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir.2005). Proper application of the Guidelines “remains the critical starting point”" }, { "docid": "18225087", "title": "", "text": "and in its brief on appeal, agreed that the decision adjudicated a Batson claim. It argues that United States v. Nealy, 232 F.3d 825 (11th Cir.2000), and United States v. Ardley, 242 F.3d 989 (11th Cir.2001), therefore bar the State from switching positions and arguing that the decision at issue adjudicated a state law claim. Our decisions in Ardley and its progeny involve direct appeals of federal court convictions, not habeas petitions. In the Ard-ley appeal, we declined to retroactively apply the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which was decided after the appellant was convicted but before his conviction became final, because he had not, raised the Apprendi issue in his opening brief on appeal. United States v. Ardley, 273 F.3d 991, 1007 (11th Cir.2001). Since Ardley, we have repeatedly followed the prudential rule that we will not consider the merits of issues not raised in the opening brief, even where they would be resolved in appellant’s favor but for his failure to anticipate the new rule of law in his opening brief. See United States v. Levy, 391 F.3d 1327, 1328 (11th Cir.2004) (denying appellant’s petition for rehearing after his conviction had become final because he had failed to raise a claim under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), until his petition for rehearing); United States v. Dockery, 401 F.3d 1261, 1262-63 (11th Cir.2005) (holding that the appellant had abandoned his claim under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), by failing to address the claim Booker created in his opening brief on appeal); United States v. Vanorden, 414 F.3d 1321, 1323 (11th Cir.2005) (holding that appellant had abandoned any Apprendi-Blakely-Booker claim by failing to brief it); United States v. Higdon, 418 F.3d 1136, 1137 (11th Cir. 2005) (Hull, J., concurring in denial of rehearing en banc) (declining to reconsider panel’s denial of appellant’s motion to file a supplemental brief raising a claim under Blakely). Although these decisions would seem at first" }, { "docid": "14507869", "title": "", "text": "REAVLEY, Circuit Judge: Troy Philip Dock appeals the district court’s imposition of 405 months’ imprisonment. We originally affirmed the sentence in an unpublished opinion, finding that the court correctly applied the United States Sentencing Commission Guidelines. United States v. Dock, 118 Fed.Appx. 879 (5th Cir.2005). We rejected Dock’s argument that the court’s application of the guidelines violated his Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 408 (2004), under our then-controlling precedent, which held Blakely inapplicable to the federal guidelines. United States v. Pineiro, 377 F.3d 464, 465-66 (5th Cir.2004), vacated by Pineiro v. United States, — U.S.-, 125 S.Ct. 1003, 160 L.Ed.2d 1006 (2005), on remand at United States v. Pineiro, 410 F.3d 282 (5th Cir.2005). Dock appealed to the Supreme Court. Following the Court’s decision that a district court’s sentence enhancement based on facts not found by a jury or admitted by the defendant does offend the Sixth Amendment in United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Court vacated our original opinion and remanded for our reconsideration. Dock v. United States, — U.S. -, 125 S.Ct. 2920, 162 L.Ed.2d 292 (2005). We again reject Dock’s non-constitutional challenges to the district court’s application of the guidelines, and, because Dock cannot establish that the district court’s fact findings at sentencing constituted plain error, we also reject his Sixth Amendment challenge. I. Background Dock, a United States citizen, lived in Juarez, Mexico and worked as a truck driver. In July 2002, he and a co-defendant, Sprague, were hired to transport a load of medical supplies from El Paso to Wisconsin. Having agreed with an alien smuggling operation to transport about fifty illegal Mexican immigrants from rural New Mexico to Dallas, Dock and Sprague drove the truck, filled with medical supplies, to New Mexico to pick up the aliens late on July 26, 2002. The majority of the aliens were directed into the two to three-foot space above the cargo in the trailer, which was not equipped to transport living beings. Sprague then padlocked the rear trailer doors." } ]

[ { "docid": "22807912", "title": "", "text": "claim and there is, instead, much to support it. We therefore conclude that sexual abuse of a prisoner by a corrections officer may in some circum stances violate the prisoner’s right to be free from cruel and unusual punishment. The Eighth Amendment sets constitutional boundaries on the conditions of imprisonment. The “unnecessary and wanton infliction of pain” on a prisoner constitutes cruel and unusual punishment in violation of the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986) (citation and internal quotation marks omitted). An official violates the Eighth Amendment when two requirements are met. See, e.g., Branham v. Meachum, 77 F.3d 626, 630 (2d Cir.1996). First, the alleged “punishment” must be, “objectively, sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994) (internal quotation marks omitted); Branham, 77 F.3d at 630. Under the objective standard, “conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional.” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981). Second, the prison official involved must have a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834, 114 S.Ct. at 1977 (citation and internal quotation marks omitted); see also Bran-ham, 77 F.3d at 630. Because sexual abuse by a corrections officer may constitute serious harm inflicted by an officer with a sufficiently culpable state of mind, allegations of such abuse are cognizable as Eighth Amendment claims.. Sexual abuse may violate contemporary standards of decency and can cause severe physical and psychological harm. See, e.g., Women Prisoners of the District of Columbia Dep’t of Corrections v. District of Columbia, 877 F.Supp. 634, 664-67 (D.D.C.1994); Jordan v. Gardner, 986 F.2d 1521, 1524-31 (9th Cir.1993) (en banc). For this reason, there can be no doubt that severe or repetitive sexual abuse of an inmate by a prison officer can be “objectively, sufficiently serious” enough to constitute an Eighth Amendment violation. Cf. Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399 (noting that the list of conditions held cruel and unusual" } ]

[ { "docid": "13230924", "title": "", "text": "the prison; and, when Paul applied modest force, Guitron remained defiant. Paul did not violate the Constitution by applying additional force. Even if “it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable” (Whitley, 475 U.S. at 319, 106 S.Ct. 1078), an error of judgment does not convert a prison security measure into a constitutional violation. The district court reached its conclusion by a different route. It stated that Guitron’s injury is de minimis and therefore not actionable under the eighth amendment. 2011 WL 2649979, 2011 U.S. Dist. LEXIS 72795 (E.D.Wis. July 6, 2011). It is hard to see how such a classification can be made without evidence — at the complaint stage, a court must accept a plaintiffs description of the injury — or why an injury that led to swelling and two months of pain would be too trivial for judicial attention. Although the Supreme Court remarked in Hudson that “[t]he Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily excludes from constitutional recognition de minimis uses of physical force,” 503 U.S. at 9-10, 112 S.Ct. 995, it added that a blow causing bruising, swelling, and loosened teeth could not be disregarded by invoking the maxim de minimis non curat lex (the law does not bother with trifles). Id. at 10, 112 S.Ct. 995. Hudson went on to hold that a prisoner need not show a “significant injury” in order to have a good claim under the eighth amendment, if a guard inflicted pain maliciously or sadistically. See also Williams v. Boles, 841 F.2d 181 (7th Cir.1988) (anticipating this conclusion). Hudson said that minimal force is not actionable; it did not say that a real injury from significant force should be ignored. A court should not recreate the disapproved “significant injury” requirement by classifying all consequences it deems “insignificant” as de minimis harms. The reason the Court referred to de minimis force in Hudson — and the reason several opinions of this court have done so since, see O’Malley v. Litscher, 465 F.3d 799, 805 (7th Cir.2006); Outlaw v. Newkirk," }, { "docid": "22073254", "title": "", "text": "at 1030. Fortner outlined a very narrow privacy right involving people’s “ ‘special sense of privacy in their genitals’ ” and noted that “ ‘involuntary exposure of them in the presence of people of the other sex may be especially demeaning and humiliating.’” Id. (citing Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir.1981)). We have reaffirmed the privacy rights of prisoners emphasizing the harm of compelled nudity. See Padgett v. Donald, 401 F.3d 1273, 1281 (11th Cir.2005). Nonetheless, we “continue to approach the scope of the privacy right on a case-by-case basis.” Fortner, 983 F.2d at 1030. In this case, Boxer’s claim is clearly within the scope of the right established in Fortner. Harris, a female prison guard, solicited Boxer to masturbate for her viewing. If his allegations are true, Boxer has stated a § 1983 claim for violation of his privacy rights under Fortner. 2. Eighth Amendment Boxer also appeals the dismissal of his claim under the Eighth Amendment, which forbids the imposition of cruel and unusual punishment. In the context of a prisoner’s conditions of confinement after incarceration, prison officials violate the. Eighth Amendment through “the unnecessary and wanton infliction of pain.” Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994) (quotations omitted). In this case, we join other circuits recognizing that severe or repetitive sexual abuse of a prisoner by a prison official can violate the Eighth Amendment. See, e.g., Giron v. Corrections Corp. of Am., 191 F.3d 1281, 1290 (10th Cir.1999); Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir.1997); Boddie v. Schnieder, 105 F.3d 857, 860-61 (2d Cir.1997). “[Sjexual abuse of a prisoner by a corrections officer has no legitimate penological purpose, and is simply not part of the penalty that criminal offenders pay for their offenses against society.” Boddie, 105 F.3d at 861 (citation and quotation omitted). Following Boddie, we conclude that there is an objective component of the inquiry, which requires that the injury be “objectively, sufficiently serious,” and a subjective component, which requires the prison official have a “sufficiently culpable state of mind.” See id." }, { "docid": "10608172", "title": "", "text": "(en banc). As Justice Blackmun explained in a much-cited concurrence in Hudson, there is no reason “to limit injury cognizable under the Eighth Amendment to physical injury. It is not hard to imagine inflictions of psychological harm — without corresponding physical harm — that might prove to be cruel and unusual punishment.” Hudson, 503 U.S. at 16, 112 S.Ct. 995 (Blackmun, J., concurring in the judgment) (citation omitted). Justice Blackmun stated he was “unaware of any precedent of [the Supreme] Court to the effect that psychological pain is not cognizable for constitutional purposes. If anything, our precedent is to the contrary.” Id. No court has ever suggested that forced masturbation would not run afoul of the Eighth Amendment. Indeed, the Sixth Circuit has held that “a male inmate ... stated a claim under the Eighth Amendment ... by alleging that ‘female prison guards have allowed themselves unrestricted views of his naked body in the shower, at close range and for extended periods of time, to retaliate against, punish and harass him for asserting his right to privacy.’ ” Everson v. Mich. Dept. of Corn., 391 F.3d 737, 757 n. 26 (6th Cir.2004) (quoting Kent v. Johnson, 821 F.2d 1220, 1227-28 (6th Cir.1987)); see also Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir.1981) (stating that “involuntary exposure of [a prisoner’s genitals] in the presence of people of the other sex” could violate the Eighth Amendment when such exposure is “not reasonably necessary”). If the involuntary exposure of a prisoner’s genitals in the presence of people of the other sex is “especially demeaning and humiliating,” id., then forced masturbation is beyond the pale. This sexual abuse undeniably violates a most basic aspect of human dignity. The nonconsensual nature of prison life should lead us to recognize that Harris’s use of threats to force Boxer to masturbate was as constitutionally offensive as if Harris had physically touched Boxer. The power imbalance inherent in prison conditions is precisely what accounts for statutes that criminalize even consensual sexual activity between prisoners and their guards. See Brenda V. Smith, An End to Silence: Prisoners’ Handbook" }, { "docid": "4823847", "title": "", "text": "Cir.1998) (per curiam) (holding that prison official’s throwing a cup of water at prisoner was de minimis use of force) with Lawrence v. Bowersox, 297 F.3d 727, 733 (8th Cir.2002) (holding that corrections officer’s use of pepper spray on prisoners confined to their cell was more than de minimis use of force). Such conduct is unequivocally contrary to “contemporary standards of decency.” Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (quoting Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)); cf. Walker v. Schult, 717 F.3d 119, 127 (2d Cir.2013) (stating that “we have long recognized that unsanitary conditions in a prison cell can, in egregious circumstances, rise to the level of cruel and unusual punishment”); Gaston v. Coughlin, 249 F.3d 156, 166 (2d Cir.2001) (refusing to adopt principle “that it is not cruel and unusual punishment for prison officials knowingly to allow an area to remain filled with sewage and excrement for days on end.”); LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir.1972) (“Causing a man to live, eat and perhaps sleep in close confines with his own human waste is too debasing and degrading to be permitted.”). Moreover, even if we were to assume arguendo that the physical force allegedly used was de minimis — though it was not — spraying an inmate with vinegar, excrement, and machine oil in the circumstances alleged here is undoubtedly “repugnant to the conscience of mankind” and therefore violates the Eighth Amendment. See, e.g., Hill v. Crum, 727 F.3d 312, 323-24 (4th Cir.2013) (“The types of actions that have been classified as ‘repugnant to the conscience of mankind’ are torture, humiliation, or degradation.”); Washington v. Hively, 695 F.3d 641, 643 (7th Cir.2012) (“An unwanted touching of a person’s private parts, intended to humiliate the victim ..., can violate a prisoner’s constitutional rights whether or not the force exerted by the assailant is significant.”); United States v. Walsh, 194 F.3d 37, 50 (2d Cir.1999) (holding that prison guard’s repeated attacks on prisoner, even if deemed de minimis, violated the Eighth Amendment" }, { "docid": "10608167", "title": "", "text": "establish a constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (citation omitted). In this case, there is no disputing the fact that the prison guard is alleged to have acted with a sufficiently culpable state of mind. Nor should there be a dispute that any sexual abuse constitutes “unnecessary and wanton infliction of pain.” Pain need not be physical so long as “the alleged wrongdoing was objectively ‘harmful enough’ to establish a constitutional violation.” Id.; see also id. at 9-10, 112 S.Ct. 995 (stating that an inmate could very well have suffered “malicious and sadistic force ... whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.”). Nor should there be any dispute that forced masturbation constitutes sexual abuse. Here, however, the panel opinion holds that there is no Eighth Amendment violation because the harm inflicted was de minimis. It is unclear to me what rationale the panel uses to support its position. Does the panel opinion stand for the proposition that the sexual abuse of prisoners is not offensive to contemporary standards of decency and human dignity? Is the opinion suggesting that the Constitution permits a “little” sexual abuse? The panel “join[s] other circuits recognizing that severe or repetitive sexual abuse of a prisoner by a prison official can violate the Eighth Amendment.” Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir.2006) (citing Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1290 (10th Cir.1999) (emphasis added); Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir.1997); and Boddie v. Schnieder, 105 F.3d 857, 860-61 (2d Cir.1997)). Yet, the panel fails to explain why forced masturbation is not severe sexual abuse or how such mistreatment is to be distinguished from other forms of sexual abuse prohibited by the Eighth Amendment. When the Supreme Court stated that de minimis abuses do not violate the Eighth Amendment, forced masturbation under threat of reprisal was not the sort of behavior of which the Court" }, { "docid": "10608165", "title": "", "text": "be the master of his complaint, he is not the master of the en banc court. Judges, acting like law professors, sometimes get caught up in the twists and whirls of a legal issue and debate beyond the point of conceivable consequence the doctrinal tags and tickets to be attached. Especially when deciding whether to take the extraordinary step of going en banc, we should keep in mind that the role of our court system in civil cases is not to decide how many analytical angels can dance on the head of a particular injury. Our role is to determine whether the plaintiff before the court is entitled to relief. We ought to leave the academic points to the academy, and by denying rehearing en banc today we do that. BARKETT, Circuit Judge, dissenting from the denial of rehearing en banc: There is no meaningful debate in our society — nor has there ever been — about whether forced masturbation is “part of the penalty that criminal offenders pay for their offenses against society.” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). Nevertheless, the panel holds that the abuse allegedly suffered by Boxer is not a violation of the Eighth Amendment because it considers forced masturbation a de minimis harm. Dismissing Boxer’s Eighth Amendment claim on the basis that he only suffered a “little” sexual abuse constitutes a “precedent-setting error of exceptional importance” and warrants en banc review. See 11th Cir. R. 35-3. Thus, for this reason, amplified below, I dissent from the denial of rehearing en banc on this issue. Once incarcerated, “the unnecessary and wanton infliction of pain ... constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (internal quotation marks omitted). A prisoner asserting an Eighth Amendment claim must demonstrate that the prison guard “act[ed] with a sufficiently culpable state of mind,” Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991), and that “the alleged wrongdoing was objectively ‘harmful enough’ to" }, { "docid": "4823849", "title": "", "text": "as it was repugnant to the conscience of mankind). When prison officials are accused of using excessive force, “the core judicial inquiry is ... whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (citing Whitley, 475 U.S. at 320-21, 106 S.Ct. 1078). Where “no legitimate law enforcement or penological purpose can be inferred from the defendant’s alleged conduct, the abuse itself may ... be sufficient evidence of a culpable state of mind.” Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir.1997). Hogan plausibly alleged that the prison officials had “sufficiently culpable state of mind[s]” to give rise to an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Prison officials, with their faces concealed by brown paper bags, approached Hogan’s cell at night for the sole purpose of assaulting him with feces, vinegar, and oil. Given this context, the assault obviously was not “a good faith effort to maintain or restore discipline,” but an attempt to “maliciously and sadistically ... cause harm.” Hudson, 503 U.S. at 7, 112 S.Ct. 995. No reasonably perceived peno-logical need existed for the application of such force. See, e.g., DeSpain v. Uphoff, 264 F.3d 965, 978 (10th Cir.2001) (holding that a prison official’s indiscriminate spraying of cells with pepper spray served no penological purpose). We therefore hold that the district court erred in concluding that the prison officials’ alleged use of force was de minimis and not of the sort repugnant to the conscience of mankind. See Griffin v. Crippen, 193 F.3d 89, 91-92 (2d Cir.1999) (holding that district court erred by concluding as a matter of law that prison guards’ alleged assault upon a handcuffed prisoner was de minimis). The conduct alleged in Hogan’s complaint is undoubtedly a form of cruel and unusual punishment proscribed by the Eighth Amendment. B. The Claims Against the John Doe Defendants On appeal, 'the Attorney General’s office argues that a remand for further proceedings with" }, { "docid": "10608166", "title": "", "text": "v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). Nevertheless, the panel holds that the abuse allegedly suffered by Boxer is not a violation of the Eighth Amendment because it considers forced masturbation a de minimis harm. Dismissing Boxer’s Eighth Amendment claim on the basis that he only suffered a “little” sexual abuse constitutes a “precedent-setting error of exceptional importance” and warrants en banc review. See 11th Cir. R. 35-3. Thus, for this reason, amplified below, I dissent from the denial of rehearing en banc on this issue. Once incarcerated, “the unnecessary and wanton infliction of pain ... constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (internal quotation marks omitted). A prisoner asserting an Eighth Amendment claim must demonstrate that the prison guard “act[ed] with a sufficiently culpable state of mind,” Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991), and that “the alleged wrongdoing was objectively ‘harmful enough’ to establish a constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (citation omitted). In this case, there is no disputing the fact that the prison guard is alleged to have acted with a sufficiently culpable state of mind. Nor should there be a dispute that any sexual abuse constitutes “unnecessary and wanton infliction of pain.” Pain need not be physical so long as “the alleged wrongdoing was objectively ‘harmful enough’ to establish a constitutional violation.” Id.; see also id. at 9-10, 112 S.Ct. 995 (stating that an inmate could very well have suffered “malicious and sadistic force ... whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.”). Nor should there be any dispute that forced masturbation constitutes sexual abuse. Here, however, the panel opinion holds that there is no Eighth Amendment violation because the harm inflicted was de minimis. It is unclear to me what rationale the" }, { "docid": "22073255", "title": "", "text": "prisoner’s conditions of confinement after incarceration, prison officials violate the. Eighth Amendment through “the unnecessary and wanton infliction of pain.” Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994) (quotations omitted). In this case, we join other circuits recognizing that severe or repetitive sexual abuse of a prisoner by a prison official can violate the Eighth Amendment. See, e.g., Giron v. Corrections Corp. of Am., 191 F.3d 1281, 1290 (10th Cir.1999); Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir.1997); Boddie v. Schnieder, 105 F.3d 857, 860-61 (2d Cir.1997). “[Sjexual abuse of a prisoner by a corrections officer has no legitimate penological purpose, and is simply not part of the penalty that criminal offenders pay for their offenses against society.” Boddie, 105 F.3d at 861 (citation and quotation omitted). Following Boddie, we conclude that there is an objective component of the inquiry, which requires that the injury be “objectively, sufficiently serious,” and a subjective component, which requires the prison official have a “sufficiently culpable state of mind.” See id. at 861 (citing Farmer, 511 U.S. at 834, 114 S.Ct. at 1977). However, under our circuit precedent about the nature of actionable injuries under the Eighth Amendment, an injury can be “objectively, sufficiently serious” only if there is more than de minimis injury. See Johnson v. Breeden, 280 F.3d 1308, 1321 (11th Cir.2002). On the facts as alleged in the complaint, however, Boxer has failed to meet this standard. We conclude that a female prison guard’s solicitation of a male prisoner’s manual, masturbation, even under the threat of reprisal, does not present more than de minimis injury. Accordingly, we affirm the dismissal of Boxer’s claim under the Eighth Amendment. B. Retaliation First Amendment rights to free speech and to petition the government for a redress of grievances are violated when a prisoner is punished for filing a grievance concerning the conditions of his imprisonment. Wildberger v. Bracknell, 869 F.2d 1467, 1468 (11th Cir.1989) (per curiam). Boxer expressly claims that he was punished for complaining through the established grievance system about his treatment by Harris. Rl-11" }, { "docid": "15210541", "title": "", "text": "In determining whether unnecessary and wanton pain has been inflicted, we must determine “whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Whitley, 475 U.S. at 320-21, 106 S.Ct. 1078 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973)); Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (holding that the post-trial beatings of a prisoner by prison guards a violation of. the Eighth Amendment’s Cruel and Unusual Punishment Clause). In determining whether the force used was necessary or unjustified, we consider several factors including the extent of the injuries suffered by an inmate, the need for the force, the relationship between the need and the amount of force applied, the threat reasonably perceived by responsible officials, and efforts to temper the severity of the force. Hudson, 503 U.S. at 11-12,112 S.Ct. 995. Additionally, Eighth Amendment claims must be analyzed subjectively (did officials act with a sufficiently culpable state of mind?) and objectively (was the alleged wrongdoing objectively harmful enough to establish a constitutional violation?). Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Of course not every malevolent touching, nor every push or shove amounts to a valid constitutional claim. De minimis uses of force do not amount to constitutional violations provided that the force is not of a sort “repugnant to the conscience of mankind.” Hudson, 503 U.S. at 9-10, 112 S.Ct. 995 (citations omitted). The evidence in this case makes it clear that the security guards were acting maliciously and sadistically for the purpose of causing both physical and psychological harm. We agree with Justice Blackmun in his concurring opinion in Hudson that psychological harm can also prove to be cruel and unusual punishment. Hudson, 503 U.S. at 16-17, 112 S.Ct. 995. There was no perceived threat from the appellant and so far as the record shows, no need for any force. All the same, the guards, without justification, sexually harassed, humiliated, and assaulted the appellant for hours. The culpable" }, { "docid": "11546512", "title": "", "text": "Prosser & Keeton on the Law of Torts § 9, pp. 41-42 (5th ed. 1984)), there is no violation of the prisoner’s constitutional rights. See, e.g., Carlson v. Bukovic, 621 F.3d 610, 620-21 (7th Cir.2010). But excessive force is not the only means by which a prisoner’s civil rights can be violated, although this point is obscured by language in Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), cited in Hendrickson: “The Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.’ ” Yet even in cases involving “excessive force” as the term is used in law, exempting “de minimis uses of physical force” would be overbroad. As we had occasion to note recently in Lapsley v. Xtek, Inc., 689 F.3d 802, 811-14 (7th Cir.2012), “force” in the language 'of physics is mass (which equals weight as long you’re not in outer space) times acceleration. But when cases talk about “excessive force” they usually mean rough or otherwise improper handling that causes excessive pain or other harm. If a guard restrains a prisoner by poking the prisoner’s cheek with the lighted end of a cigarette, the modest force exerted causes a more painful injury than if the guard had dragged the prisoner into a cell, even though he’d have had to exert much greater force to accomplish that. If in dragging the prisoner he uses more force than is necessary and by doing so produces gratuitous pain or injury, we say that the force was excessive. But force is not the issue in the cigarette example or in a sexual battery case either. An unwanted touching of a person’s private parts, intended to humiliate the victim or gratify the assailant’s sexual desires, can violate a prisoner’s constitutional rights whether or not the force exerted by the assailant is significant. See Mays v. Springborn, 575 F.3d 643, 650 (7th Cir.2009); Calhoun v. DeTella, 319 F.3d 936, 939-40 (7th Cir.2003);" }, { "docid": "14057959", "title": "", "text": "see also Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (observing that \"officials can still be on notice that their conduct violates established law even in novel factual circumstances” and that qualified immunity can be withheld even in the absence of prior cases with \"materially similar facts”). Thus, for example, the Eleventh Circuit has held that the use of pepper spray on a handcuffed arrestee in the back seat of a police car was \"so far beyond the hazy border between excessive and unreasonable force [that every objectively reasonable officer] had to know he was violating the Constitution even without caselaw on point.” Vinyard v. Wilson, 311 F.3d 1340, 1355 (11th Cir.2002) (quoting Priester, 208 F.3d at 926); see also id. at 1350 n. 18 (citing similar cases). . In Hudson v. McMillian, the Supreme Court recognized a de minimis principle in the context of excessive force claims brought by prisoners pursuant to the Eighth Amendment’s Cruel and Unusual Punishment Clause. That prohibition, the Court suggested, \"necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort 'repugnant to the conscience of mankind.' ” 503 U.S. 1, 9-10, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). . Although there is generally no requirement that an individual must suffer a serious physical injury in order to maintain a § 1983 action for excessive force in violation of the Fourth Amendment, see, e.g., Ingram v. City of Columbus, 185 F.3d 579, 597 (6th Cir.1999); Burbank v. Davis, 238 F.Supp.2d 317, 320 (D.Me.2003); cf. Lambert v. City of Dumas, 187 F.3d 931, 936 & n. 7 (8th Cir.1999) (holding that there is no \"significant injury” requirement, but assuming without deciding that an excessive force plaintiff must show \"actual injury”), the magnitude of the injury (if any) is certainly relevant in evaluating the degree of force used, and is in this sense relevant to the constitutional analysis. See Wardlaw v. Pickett, 1 F.3d" }, { "docid": "10608169", "title": "", "text": "spoke: “The Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.’ ” Id. at 9-10, 112 S.Ct. 995 (quoting Whitley, 475 U.S. at 327, 106 S.Ct. 1078) (emphasis added) (further internal quotation marks omitted). To the extent that the panel concludes that Boxer has alleged only a de minimis harm, the panel must necessarily conclude that forced masturbation is not “repugnant to the conscience of mankind.” I cannot agree. To consider forced masturbation de minimus, and therefore permissible at the whim of a jailer would be to deny the “ ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency’ ” that are embodied in the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir.1968)). Compare Gill v. Tuttle, 93 Fed.Appx. 301 (2d Cir.2004) (unpublished) (finding that prison guard spitting on prisoner constituted de minimis harm); Siglar v. Hightower, 112 F.3d 191, 193-94 (5th Cir.1997) (holding that a prisoner’s bruised ear caused during a routine search constituted a de minimis use of force). At its essence, the test for measuring harm, for Eighth Amendment purposes, is the extent to which a prisoner’s alleged harm violates: (1) human dignity, and (2) contemporary standards of decency. See Atkins v. Virginia, 536 U.S. 304, 311-12, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). There is no question that Boxer has alleged a violation of human dignity. The Supreme Court has explained that sexuality is central to human dignity and even to the very meaning of human existence. In Lawrence v. Texas, 539 U.S. 558, 567, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), the Court stated that laws regulating private sexual acts between consenting adults implicate “their dignity as free persons.” In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), the Court explained that “personal decisions” relating to matters involving" }, { "docid": "5941826", "title": "", "text": "Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (citations and internal quotations omitted). Whenever prison officials stand accused of using excessive physical force in violation of the Eighth Amendment, the “core judicial inquiry” is whether the force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. Hudson, 503 U.S. at 6-7, 112 S.Ct. 995 (citing Whitley, 475 U.S. at 320-21, 106 S.Ct. 1078). Factors which inform this inquiry include the need for the application of physical force; the relationship between the need for physical force and the amount of force applied; and the extent of injury suffered by the inmate. Id. at 7, 112 S.Ct. 995 (citing Whitley, 475 U.S. at 320, 106 S.Ct. 1078). Not every malevolent touch by a prison guard gives rise to a federal cause of action. Id. at 9, 112 S.Ct. 995 (citations omitted). “The Eighth Amendment’s prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Id. at 9-10, 112 S.Ct. 995 (citing Whitley, 475 U.S. at 327, 106 S.Ct. 1078) (internal quotations omitted). Serious or permanent injury is not required to make out an Eighth Amendment claim. Berryhill, 137 F.3d at 1076-77 (citing White v. Holmes, 21 F.3d 277, 281 (8th Cir.1994)). Some actual injury must be shown, however, and we consider the extent of the pain inflicted in order to determine whether a constitutional deprivation has occurred. Id. at 1076-77 (citing White, 21 F.3d at 281). Viewing the evidence in Shields’ favor, we conclude Jones’ administration of capstan in this prison setting resulted in de minimis injury for Eighth Amendment purposes. Despite somewhat elaborate claims of pain, Shields’ own testimony reveals the effects of the capstan cleared within 45 minutes; he was twice taken to the infirmary and treated with water during that period, and; a medical examination the day after the incident revealed no lingering effects. See, e.g., Samuels v." }, { "docid": "10608168", "title": "", "text": "panel uses to support its position. Does the panel opinion stand for the proposition that the sexual abuse of prisoners is not offensive to contemporary standards of decency and human dignity? Is the opinion suggesting that the Constitution permits a “little” sexual abuse? The panel “join[s] other circuits recognizing that severe or repetitive sexual abuse of a prisoner by a prison official can violate the Eighth Amendment.” Boxer X v. Harris, 437 F.3d 1107, 1111 (11th Cir.2006) (citing Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1290 (10th Cir.1999) (emphasis added); Freitas v. Ault, 109 F.3d 1335, 1338 (8th Cir.1997); and Boddie v. Schnieder, 105 F.3d 857, 860-61 (2d Cir.1997)). Yet, the panel fails to explain why forced masturbation is not severe sexual abuse or how such mistreatment is to be distinguished from other forms of sexual abuse prohibited by the Eighth Amendment. When the Supreme Court stated that de minimis abuses do not violate the Eighth Amendment, forced masturbation under threat of reprisal was not the sort of behavior of which the Court spoke: “The Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.’ ” Id. at 9-10, 112 S.Ct. 995 (quoting Whitley, 475 U.S. at 327, 106 S.Ct. 1078) (emphasis added) (further internal quotation marks omitted). To the extent that the panel concludes that Boxer has alleged only a de minimis harm, the panel must necessarily conclude that forced masturbation is not “repugnant to the conscience of mankind.” I cannot agree. To consider forced masturbation de minimus, and therefore permissible at the whim of a jailer would be to deny the “ ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency’ ” that are embodied in the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir.1968)). Compare Gill v. Tuttle, 93 Fed.Appx. 301 (2d Cir.2004) (unpublished) (finding that prison guard spitting" }, { "docid": "1568274", "title": "", "text": "form of rape and sexual abuse. “Ordinarily, an excessive force claim involves two prongs: (1) an objective prong that asks ‘if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation,’ and (2) a subjective prong under which the plaintiff must show that ‘the officials act[ed] with a sufficiently culpable state of mind.’ ” Giron v. Corrections Corp. of America, 191 F.3d 1281, 1289 (10th Cir.1999) (quoting Hudson, 503 U.S. at 8, 112 S.Ct. 995) (internal quotation marks omitted) (alteration in original). The objective component of an excessive force claim is “contextual and responsive to contemporary standards of decency.” Hudson, 503 U.S. at 8, 112 S.Ct. 995. “The subjective element of an excessive force claim ‘turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’ ” Giron, 191 F.3d at 1289 (quoting Whitley, 475 U.S. at 320-21, 106 S.Ct. 1078). Sexual abuse is repugnant to contemporary standards of decency and allegations of sexual abuse can satisfy the objective component of an Eighth Amendment excessive force claim. We have expressly acknowledged that “an inmate has a constitutional right to be secure in her bodily integrity and free from attack by prison guards.” Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir.1993). The right to be secure in one’s bodily integrity includes the right to be free from sexual abuse. See Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir.1998) (holding that “plaintiffs’ deprivations resulting from the sexual assaults are sufficiently serious to constitute a violation under the Eighth Amendment.”). We find that Smith’s allegation of sexual abuse by Cochran identifies acts that satisfy the objective prong of Smith’s excessive force claim. She states in her deposition testimony and in an affidavit that Cochran forced her to expose herself to him and that he raped her on several occasions, including once with a salt shaker. Smith’s allegations also satisfy the subjective prong of an excessive force claim. In cases of sexual abuse or rape, “the conduct itself constitutes sufficient evidence that force was" }, { "docid": "5941825", "title": "", "text": "the district court erred when it answered the constitutional question in the affirmative. Jones argues the pain Shields experienced was de min-imis for purposes of the Eighth Amendment, and further claims his actions were neither repugnant to the conscience of mankind, nor malicious or sadistic. Shields maintains he suffered extreme pain, and the application of capstun in this case was malicious, sadistic, and served no useful purpose. We agree with Jones, and hold Shields has failed to establish an Eighth Amendment violation. The Eighth Amendment protects incarcerated prisoners from cruel and unusual punishment, and this protection is grounded upon their right to be free from unnecessary and wanton infliction of pain at the hands of correctional officers. Parkus v. Delo, 135 F.3d 1232, 1234 (8th Cir.1998)(citing Hudson v. McMillian, 503 U.S. 1, 5, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)). Not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny, however. Only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (citations and internal quotations omitted). Whenever prison officials stand accused of using excessive physical force in violation of the Eighth Amendment, the “core judicial inquiry” is whether the force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. Hudson, 503 U.S. at 6-7, 112 S.Ct. 995 (citing Whitley, 475 U.S. at 320-21, 106 S.Ct. 1078). Factors which inform this inquiry include the need for the application of physical force; the relationship between the need for physical force and the amount of force applied; and the extent of injury suffered by the inmate. Id. at 7, 112 S.Ct. 995 (citing Whitley, 475 U.S. at 320, 106 S.Ct. 1078). Not every malevolent touch by a prison guard gives rise to a federal cause of action. Id. at 9, 112 S.Ct. 995 (citations omitted). “The Eighth Amendment’s prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of" }, { "docid": "1568273", "title": "", "text": "(quoting Hinton v. City of Elwood, 997 F.2d 774, 779 (10th Cir.1993)) (internal quotation marks omitted). I. The Alleged Violation of the Eighth Amendment We turn first to whether Smith has established that Cochran’s actions violated the Eighth Amendment. The Eight Amendment states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, amend. VIII. The Supreme Court has said that the use of excessive force against a prisoner can violate the Eighth Amendment, stating that “ ‘the unnecessary and wanton infliction of pain ... constitutes cruel and unusual punishment forbidden by the Eighth Amendment.’ ” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (quoting Ingraham v. Wright, 430 U.S. 651, 670, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977)) (internal quotation marks omitted); Hudson v. McMillian, 503 U.S. 1, 5-6, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). Smith claims that Cochran violated her right to be free from cruel and unusual punishment by using excessive force against her in the form of rape and sexual abuse. “Ordinarily, an excessive force claim involves two prongs: (1) an objective prong that asks ‘if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation,’ and (2) a subjective prong under which the plaintiff must show that ‘the officials act[ed] with a sufficiently culpable state of mind.’ ” Giron v. Corrections Corp. of America, 191 F.3d 1281, 1289 (10th Cir.1999) (quoting Hudson, 503 U.S. at 8, 112 S.Ct. 995) (internal quotation marks omitted) (alteration in original). The objective component of an excessive force claim is “contextual and responsive to contemporary standards of decency.” Hudson, 503 U.S. at 8, 112 S.Ct. 995. “The subjective element of an excessive force claim ‘turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’ ” Giron, 191 F.3d at 1289 (quoting Whitley, 475 U.S. at 320-21, 106 S.Ct. 1078). Sexual abuse is repugnant to contemporary standards of decency and allegations of sexual abuse can satisfy" }, { "docid": "10608175", "title": "", "text": "statutes of the federal government and forty-seven states “specifically criminaliz[e] sexual abuse in prisons.” Smith, supra, at 21; see 18 U.S.C. §§ 2241(a)(1)-(2), 2243, 2244; see also, e.g., D.C.Code § 22-3013; N.D. Cent. Code § 12.1-20-06. Society’s opprobrium for what happened in Boxer’s jail cell is also manifested in the obscenity laws of several states. See, e.g., Ala.Code 1975 § 13A-12-200.il; 720 111. Comp. Stat. § 5/11-21 (a), (b); Minn.Stat. § 617.23 sub. 1; Miss.Code Ann. §§ 97-29-101, 97-29-103(l)(a), (3). Under Alabama law, for example, it would have been illegal for Boxer to expose himself to Harris at a business establishment or private club. See Ala.Code 1975 § 13A-12-200.il. If Harris could not have solicited Boxer to expose himself and perform an autoerotic sex act in the voluntary context of a private strip club without violating societal standards of decency, then clearly Harris violated those standards when she used threats to force Boxer to masturbate for her in his jail cell. Neither contemporary standards of decency nor basic principles of human dignity sanction compelled masturbation. The use of prison disciplinary procedures to extract sexual favors from prisoners is the type of conduct that is at the heart of what the Eighth Amendment proscribes, and for good reason. The sexual abuse of prisoners is an all-too-common phenomenon. Boxer’s complaint of sexual abuse is not the first, and it will not be the last. The en banc court should address the question of whether the conduct at issue here is too “little” to be actionable under the Eighth Amendment’s proscription of cruel or unusual punishment. Finally, I fully agree with the Panel’s conclusion that Boxer has stated a privacy claim, but I do not believe that the Panel’s affirmance of his privacy claim alters the extent to which his Eighth Amendment claim is warranted. It is beyond question that Boxer’s possibility of recovery on his privacy claim by itself does not lessen the importance of the constitutional principle at issue with respect to his Eighth Amendment claim. Judge Carnes argues that en banc review is not appropriate because Boxer has a claim" }, { "docid": "10608170", "title": "", "text": "on prisoner constituted de minimis harm); Siglar v. Hightower, 112 F.3d 191, 193-94 (5th Cir.1997) (holding that a prisoner’s bruised ear caused during a routine search constituted a de minimis use of force). At its essence, the test for measuring harm, for Eighth Amendment purposes, is the extent to which a prisoner’s alleged harm violates: (1) human dignity, and (2) contemporary standards of decency. See Atkins v. Virginia, 536 U.S. 304, 311-12, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). There is no question that Boxer has alleged a violation of human dignity. The Supreme Court has explained that sexuality is central to human dignity and even to the very meaning of human existence. In Lawrence v. Texas, 539 U.S. 558, 567, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), the Court stated that laws regulating private sexual acts between consenting adults implicate “their dignity as free persons.” In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), the Court explained that “personal decisions” relating to matters involving sexuality are “central to personal dignity.” In the same vein, one of our sister courts observed long ago that “elementary self-respect” and “personal dignity” “impel[]” “[t]he desire to shield one’s unclothed figure[] from view of strangers.” York v. Story, 324 F.2d 450, 455 (9th Cir.1963). Our society has always recognized that “[s]exual abuse ... can cause severe physical and psychological harm.” Boddie, 105 F.3d at 861. The district court relied heavily on the fact that Harris never touched Boxer, but that reliance is misplaced. We have recognized that the “case law ... of the Supreme Court ... made it plain that lack of physical injury did not mean that no Eighth Amendment violation had been established,” Marsh v. Butler County, 268 F.3d 1014, 1034 (11th Cir.2001), and “we have never held that a prisoner must allege a physical injury in order to make out a cognizable claim under the Eighth Amendment,” Harris v. Garner, 190 F.3d 1279, 1287 (11th Cir.1999), vacated on reh’g en banc, 197 F.3d 1059, reinstated in part, 216 F.3d 970 (2000)" } ]

[ { "docid": "14277749", "title": "", "text": "more connected to the performance of the contract than Ohio. iv. Location of Subject Matter of the Contract Defendant contends that Illinois was the' location of the actual subject matter of the contract, while Plaintiff argues that, because R & C retained “ownership” of the drawing under the 1989 Agreement, the “location” was always at R & C’s principal place of business, in Ohio. Comment e reads, ... [t]he state where the thing ... is located will have a natural interest in transactions affecting it. Also the parties will regard the location of the thing ... as important. Indeed, when the thing ... is the principal subject of the contract, it can often be assumed that the parties, to the extent that they thought about the matter at all, would expect that the local law of the state were the thing ... was located would be applied to determine many of the issues arising under the contract. Restatement (Second) of Conflicts § 188, cmt. e; see Power-Tek Solutions Serv. v: Techlink, 403 F.3d 353, 358 (6th Cir.2005). In this case, the location of the subject matter of the contract was Illinois. Location is traditionally interpreted to mean the “physical location.” See Power-Tek Solutions Serv., 403 F.3d at 358 (finding that where the alleged agreement involved a chattel located in Michigan, that factor weighed in favor of applying Michigan law). Defendant possessed the R & C drawing in its offices in Illinois; therefore, despite Plaintiffs alleged ownership and control of the drawing, this Court finds that it was located in Illinois. v. The Parties’ Respective Domiciles, Residences, Nationalities, Places of Incorporation, and Places of Business Finally, Defendant argues that the fact that Illinois housed its principal place of business was a good reason to apply the Illinois ten-year statute of limitations. Plaintiff, however, is an Ohio corporation, with its principal place of business in Ohio. Where the parties’ principal places of business are in two different states, Ohio courts consider both to be “connected” to the litigation. See id. (where Defendant was a Tennessee corporation, and plaintiff was an Ohio corporation," } ]

[ { "docid": "15733846", "title": "", "text": "different standards and burdens of proof with regard to plaintiffs' warranty, fraud and consumer protection claims.” In re: Ford Motor Company Ignition Switch Products Liability Litigation, 174 F.R.D. 332, 350-51 (D.N.J.1997). . The district court also may well not have found Georgia law applied if it had performed an adequate choice of law analysis for the contracts issue. Section 188 of the Restatement sets forth contacts to consider in regard to a contract issue. They include: 1) the place of contracting; 2) the place of negotiation; 3) the place of performance; 4) the location of the contract’s subject matter; and 5) the domicile, residence, place of incorporation and place of business of the parties. See Restatement (Second) of Conflict of Laws § 188. Glock USA is incorporated and has its principal place of business in Georgia, but plaintiffs are domiciled in the 50 states and the District of Columbia. The place of contracting would presumably be the place of purchase; the location of performance and the location of the subject matter of the contract would be the place where the gun is used; and the place of negotiation would not apply. Related state policies of all the interested states would also, of course, need to be examined for a thorough approach to this issue. . See, e.g., In re Ford Motor Co. Ignition Switch Products Liability Litigation, 174 F.R.D. 332, 348 (D.N.J.1997) (\"Each plaintiff's home state has an interest in protecting its consumers from in-state injuries caused by foreign corporations and in delineating the scope of recovery for its citizens under its own laws.”). . In fact, defendants-appellants point out several doctrines that might limit recovery in Georgia in this case: the economic loss doctrine, lack of privity, limits on punitive damages, among others. . See, e.g., In re Ford Motor Co. Ignition Switch Products, 174 F.R.D. at 348; Feinstein v. Firestone Tire & Rubber Co., 535 F.Supp. 595 (S.D.N.Y.1982); Poe v. Sears, Roebuck & Co., 1998 WL 113561 (N.D.Ga.1998). But see Lerch v. Citizens First Bancorp, Inc., 144 F.R.D. 247, 256-57 (D.N.J.1992); Elkins v. Equitable Life Ins. of Iowa," }, { "docid": "14042350", "title": "", "text": "the factors described in the Restatement (Second) of Conflict of Laws § 188. See CSR Ltd. v. Cigna Corp., No. 95-2547, 2005 WL 3132188, *13 (D.N.J. Nov. 21, 2005) (“In so doing, the New Jersey Supreme Court requires that courts consider the guidance of the Restatement.”). As one court has explained: In the context of contract matters, the Restatement provides that “[i]f the place of negotiating the contract and the place of performance are in the same state, the local law of this state will usually be applied” unless the principles stated in § 6 dictate a different result. Section 188 offers various contacts for courts to consider in applying the principles of § 6 to contract issues, including: “(a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties.” “These contacts are to be evaluated according to their relative importance with respect to the particular issue.” Id. at *13 (internal citations omitted) (citing Gilbert Spruance Co. v. Pa. Mfrs.’ Assoc. Ins. Co., 134 N.J. 96, 629 A.2d 885, 888 (1993)). In tort cases, “four factors must be taken into account: 1) the place where the injury occurred; 2) the place where the conduct causing the injury occurred; 3) the domicile, residence, nationality, place of incorporation, and place of business of the parties; and 4) the place where the relationship, if any, between the parties is centered.” Weisbrot v. Schwimmer, No. 97-2711, 2007 WL 2683642, *3 (D.N.J. Sept. 7, 2007) (citing Lebegern v. Forman, 471 F.3d 424, 428-29 (3d Cir.2006)). For tort claims that sound in fraud the Restatement lists several relevant contacts to determine which state has the most significant relationship to the occurrence and the parties. In fraud claims, New Jersey courts look to these factors: The Restatement [ (Second) Conflict of Laws § 148(2)(a)-(f) ] enumerates six contacts[:] (a) the place ... where the plaintiff acted in reliance upon the defendant’s representations, (b) the" }, { "docid": "5791493", "title": "", "text": "Mississippi substantive law on privity, disclaimers and limitation of remedies in a warranty action only when the transaction giving rise to the warranty claim bears some reasonable and appropriate relation to Mississippi. In the absence of such relation, application of Mississippi substantive warranty law violates constitutional guarantees. No such appropriate relation exists in this case. The court therefore turns to the question of which state’s or states’ laws should govern the instant warranty claims. Mississippi has clearly indicated that it applies the center of gravity doctrine first enunciated in a tort case, Mitchell v. Craft, 211 So.2d 509 (Miss.1968), in a contract action. Spragins v. Louise Plantation, 391 So.2d 97, 99 (Miss.1980); Craig v. Columbus Compress & Warehouse Co., 210 So.2d 645, 659 (Miss.1968). Indeed, two cases decided before the 1978 amendment to section 75-1-105(1) indicated that Mississippi utilizes the center of gravity doctrine in actions brought under Article 2 of the Mississippi Commercial Code. Bunge Corp. v. Biglane, 418 F.Supp. 1159, 1164 (S.D.Miss.1976); Dunavant Enterprises, Inc. v. Ford, 294 So.2d 788, 791 (Miss.1974). Bunge and Dunavant construed section 75-1-105 to require application of the significant contacts analysis, and are particularly relevant in light of this court’s determination that the 1978 amendment to section 75-1-105 did not abrogate that requirement. In Bunge the court adopted the following factors from section 188 of the Restatement (Second) Conflict of Laws in determining the applicable law in the absence of a choice of law by the parties: (a) the place of contract, (b) the place of negotiation of contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties. 481 F.Supp. at 1164. None of these factors point to Mississippi for application of its laws to the instant action. As stated, the place of contracting between ITT and the Army was New Jersey. The contract was negotiated in either New Jersey, Virginia or California, but the performance and the location of the subject matter of the contract on the day of delivery" }, { "docid": "5101686", "title": "", "text": "“vertical privity” with the defendant. The term “vertical privity” refers to links in the chain of distribution of goods. If the buyer and seller occupy adjoining links in the chain, they are in vertical privity with each other____ Further, if the retail buyer seeks warranty recovery against a manufacturer with whom he has no direct contractual nexus, the manufacturer would seek insulation via the vertical privity defense. Finally, there is no privity between the original seller and a subsequent purchaser who is in no way a party to the original sale. Id. (internal quotation marks and citations omitted); accord, Clemens v. Daimler-Chrysler Corp., 534 F.3d 1017, 1023 (9th Cir.2008) (applying California law and dis missing, for lack of vertical privity, claims by a purchaser against a manufacturer). Although acknowledging the general rule that a plaintiff must be in privity with a defendant in order to assert an implied warranty claim, Plaintiffs here nonetheless argue two exceptions to the general rule, third-party beneficiary status and the sale of a dangerous instrumentality, excuse the lack of privity. a. Exception to Privity Requirement for Third-Party Beneficiaries Plaintiffs contend that they may assert their implied warranty claim notwithstanding that the are admittedly not in vertical privity with Defendants. They do so based on the argument that third-party beneficiaries to contracts between other parties that create an implied warranty of merchantability may avail themselves of the implied warranty. The law in California on third-party beneficiaries is well established. By statute, Cal. Civ.Code § 1559, a third-party beneficiary may enforce a contract made expressly for his or her benefit. Id. A contract made “expressly” for a third party’s benefit need not specifically name the party as the beneficiary; to be deemed a third-party beneficiary, one need only to have experienced more than an incidental benefit from the contract. Gilbert Financial Corp. v. Steelform Contracting Co., 82 Cal.App.3d 65, 69, 145 Cal.Rptr. 448 (1978). Although courts applying California law regarding the third-party beneficiary exception to the vertical privity requirement of implied warranty claims have come to differing conclusions, the clear weight of authority compels a conclusion that" }, { "docid": "7555092", "title": "", "text": "that could process dry material. It already had equipment that could perform those functions. Given this state of affairs, the representations by Rauschkolb were far beyond mere commercial puffery. Rather, Rauschkolb’s statements went to the very essence of SRS’ performance requirements for its new soil preconditioning unit. The court concludes that such statements may constitute express warranties under Iowa Code § 554.2313(l)(a). Whether these statements constitute a warranty, as opposed to an expression of opinion, is a question for the trier of fact. See Royal Business Machs., 633 F.2d at 43; Gillette Dairy, Inc. v. Hydrotex Indus., Inc., 440 F.2d 969, 974 (8th Cir.1971). Therefore, this portion of Cedarapids’ motion for summary judgment is denied. b. SRS’ right to consequential damages Cedarapids also seeks summary judgment as to SRS’ claim of consequential damages based on the breach of express warranty. Clearly, SRS never entered into a contract with Cedarapids to purchase the SPC-1. Rather, Tralon was the contractual purchaser of the SPC-1. Under Iowa law, non-privity buyers cannot recover consequential economic loss damages under a theory of express or implied warranty. Tomka v. Hoechst Celanese Corp., 528 N.W.2d 103, 107-08 (Iowa 1995); Beyond the Garden Gate, Inc. v. Northstar Freeze-Dry Mfg., Inc., 526 N.W.2d 305, 309-10 (Iowa 1995); accord Bruce v. ICI Americas, Inc., 933 F.Supp. 781, 788-89 (S.D.Iowa 1996). Because SRS is a non-privity buyer here, SRS cannot recover consequential economic loss damages under its warranty claims. Therefore, Cedarapids’ motion for summary judgment is granted as to SRS’ claim of consequential damages based on the breach of express warranty. 3. Plaintiffs’ Fraudulent Misrepresentation Claims Cedarapids makes a three pronged attack on plaintiffs’ fraudulent misrepresentation claims. First, Cedarapids asserts that plaintiffs’ frauds claim are not viable due to operation of the terms of the February 8, 1993 quotation. Because the court has concluded that a material question of fact exists as to whether the February 8, 1993 quotation represents the terms of the agreement between Tralon and Cedarapids, the court need not determine the correctness of this theory today. Cedarapids’ second line of attack is its theory that the alleged" }, { "docid": "7086822", "title": "", "text": "excluded under the policy. ■ Discussion The court has subject matter jurisdiction over this action, because plaintiff is incorporated under the laws of Missouri where it has its principal place of business, defendant is'incorporated under the laws of Pennsylvania, and the amount in controversy totals more than $75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a). In this diversity action, the court must look to the rules of decision that the forum state Missouri courts would apply. Donovan v. Harrah’s Maryland Heights Corp., 289 F.3d 527, 529 (8th Cir.2002). Missouri adopted sections 188 and 193 of the Restatement (Second) of Conflict of Laws (1971) for choice-of-law issues in casualty insurance contracts. Crown Center Redevelopment Corp. v. Occidental Fire & Cas. Co. of North Carolina, 716 S.W.2d 348, 358 (Mo.App.1986). Section 188 applies to policies with no choice-of-law provision — as here. It provides that the law of the state with the most significant relationship to the transaction and parties governs. Restatement (Second) of Conflict of Laws section 188(1). It also provides what contacts are considered: “(a) the place of contracting, (b) the place of negotiation of the' contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and. place of business of the parties.” Restatement (Second) of Conflict of Laws section 188(2). Viacom, Inc. v. Transit Cas. Co., 138 S.W.3d 723, 724-25 (Mo.2004) (en banc). Section 188 gives more weight to “the principal location of the insured risk” than any other single choice-of-law, significant relationship factor. Egnatic v. Nguyen, 113 S.W.3d 659, 665 (Mo.Ct.App.2003). In this case, the policy does not contain a choice-of-law provision. Thus, the court must look to the Restatement factors. The undisputed facts indicate that Missouri has the most significant relationship to the incident and the parties at bar. One of the parties is a Missouri corporation with its place of business in Missouri. And plaintiff produced both the original non-conforming and the later conforming products at its Missouri die-cutting business location in the City of St. Louis. The parties" }, { "docid": "7662868", "title": "", "text": "rules of professional conduct in the two jurisdictions differ, principles of conflict of laws may apply... Where [a] lawyer is licensed to practice law in two jurisdictions which impose conflicting obligations, applicable rules of choice of law may govern the situation.”) Under § 188 of the Restatement, “[i]n the absence of an effective choice of law by the parties,” the factors to be considered in determining which state’s law governs a particular issue include; (a) the place of contracting; (b) the place of negotiation of the contract; (c) the place of performance; (d) the location of the subject matter of the contract; and(e) the domicile, residence, nationality, place of incorporation and place of business of the parties. Restatement (Second) Conflict of Laws § 188; see, e.g., E.I. du Pont de Nemours, 1991 WL 236943, at *2, 1991 Del.Super. LEXIS 416, at *5. These factors are to be evaluated according to their relative importance with respect to the issue involved and in consideration of the conflict of law principles listed in § 6 of the Restatement . Restatement (Second) Conflict of Laws § 188, Comment b at 576; see, e.g., E.I. du Pont de Nemours, 1991 WL 286943, at *2, 1991 Del.Super. LEXIS 416, at *5, 8*. Ordinarily, where the place of contracting and performance are the same, the law of that state will control. Restatement (Second) Conflict of Laws § 188(3); see also Northwestern Nat’l Ins. Co. v. Esmark, Inc., 1996 WL 527349, at *4 (Del.Super.Ct.1996). However, where the policies set forth in § 6 of the Restatement require otherwise, these factors will not be controlling. Restatement (Second) Conflict of Laws § 188(3); see also Es-mark, 1996 WL 527349, at *4. Applying this analysis to the facts before me, I find that Louisiana and California have the most significant relationship with AMC, Duane Morris (collectively, the “Parties” ’) and their contractual relationship. Therefore, Louisiana and/or California law govern the determination of whether Duane Morris has a valid lien on the Attorney Files. Contrary to Defendants’ assertion, Delaware is not a relevant jurisdiction. (Duane Morris’ Resp. (Doc. # 25) at 11-14.)" }, { "docid": "23697389", "title": "", "text": "Thus, where the commodities sold are such that if defectively manufactured they will be dangerous to life or limb, then society’s interests can only be protected by eliminating the requirement of privity between the maker and his dealers and the reasonably expected ultimate consumer.” The reasoning of Henningsen, of Spence v. Three Rivers Builders & Mason Supply, Inc., 353 Mich. 120, 90 N.W.2d 873 (1958), and of Putman, supra, and the many other cases striking down the requirement of privity in implied warranty seems eminently sound. As Judge Wisdom so aptly recognized in Putman, supra, at 919 of 338 F.2d, “Since 1958,18 almost every court which has considered the question has expanded the doctrine of strict liability to cover all defective products, regardless of lack of proof of negligence.19 ” See footnotes 18 and 19. Various means have been applied to reach this result without naming the rule “strict liability” and without the furor which that label has created. In Gahimer v. Virginia-Carolina Chemical Corp., 241 F.2d 836, 842 (7th Cir. 1957), the Indiana Sales Act definition of a “buyer,” which included a “buyer from a buyer,” was the basis for the statement that the manufacturer’s implied warranty extended to that ultimate consumer. If that conclusion was merely a narrow but just exception to the generally recognized limits of contract privity and was founded solely on contract doctrine, it could have been defeated by a manufacturer’s disclaimer of liability. Surely, the mere addition of a disclaimer by the manufacturer made to its immediate buyer would not justify a different conclusion. This court in Hart v. Goodyear Tire & Rubber Co., supra, 214 F.Supp. at 819, an implied warranty action, found an employee of a corporate purchaser in privity with the seller by finding him a “legal successor in interest” under the Indiana Sales Act definition of a “buyer”. Ind.Ann.Stat. See. 58-606 (Burns 1961). A similar technique had been applied in Peterson v. Lamb Rubber Co., 54 Cal.2d 339, 5 Cal.Rptr. 863, 353 P.2d 575 (1960), now replaced by the more forthright unanimous opinion by Judge Traynor in Greenman v. Yuba" }, { "docid": "4398801", "title": "", "text": "the reasons discussed in the preceding section, the Court finds that Plaintiff satisfies this element. Defendant’s Motion states that Plaintiff “has alleged no facts establishing privity with Wrigley. A plaintiff who purchases a product, but does not buy it directly from the defendant, is not in privity with that defendant.” DE 20 at 9. Defendant cites case law for the propositions that “to recover for the breach of a warranty, either express or implied, the plaintiff must be in privity of contract with the defendant,” T.W.M. v. American Medical Sys., 886 F.Supp. 842, 844 (N.D.Fla.1995), and “[p]rivity is required even if suit is brought against a manufacturer.” Tolliver v. Monaco Coach Corp., No. 06-CV-856, 2006 WL 1678842 (M.D.Fla. June 16, 2006). Plaintiff asserts that Defendant is “flat wrong” and relies on Hoskins v. Jackson Grain Co., 63 So.2d 514 (Fla.1953), to argue privity is not required in this case. DE 25 at 12. The privity requirement in Florida warranty claims is a moving target which depends on factors including whether the warranty is express or implied and the type of injury alleged. The Florida Supreme Court acknowledged that “warranty law in Florida has become filled with inconsistencies and misapplications in the judiciary’s attempt to provide justice to the injured consumer.” West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976). The Florida Supreme Court has clarified the law in West and Kramer v. Piper Aircraft Corp., 520 So.2d 37 (Fla.1988), in cases involving implied warranty claims. See David v. Am. Suzuki Motor Corp., 629 F.Supp.2d 1309, 1321-23 (S.D.Fla.2009) (containing a comprehensive discussion of the evolution of implied warranty claims under Florida law). It is now well-settled that, barring certain exceptions, “[ujnder Florida law, a plaintiff cannot recover economic losses for breach of implied warranty in the absence of privity.” Mesa v. BMW of N. Am., LLC, 904 So.2d 450, 458 (Fla.Dist.Ct.App.2005); see also David, 629 F.Supp.2d at 1323. However, the Florida Supreme Court has not provided similar clarification for express warranty claims and the stark difference in the positions taken by the parties demonstrates that a degree of uncertainty persists. See," }, { "docid": "15266429", "title": "", "text": "no other state that has a closer relationship to the subject matter of this suit than each Settlement Class member’s state of purchase. Likewise, the state of purchase has the most significant contacts to the parties’ sales contract for GTA:SA because that state is the situs of the contracting, negotiation, and performance of the sales contract. See Restatement (Second) of Conflict of Laws § 188(3). Accordingly, Illinois choice-of-law principles require the application of the consumer-fraud, warranty, and unjust-enrichment laws of the state wherein each Settlement Class member bought his game. See Dex-Cool, 241 F.R.D. at 315-18 (applying Illinois conflicts jurisprudence to find that law of state where each plaintiff resides applies to claims for breach of warranty); see also In re Pharm. Indus. Average Wholesale Price Litig., 230 F.R.D. 61, 82-83 (D.Mass.2005) (applying Massachusetts conflicts jurisprudence, which is also based on Restatement (Second) of Conflict of Laws, to conclude that law of state where each plaintiff resides governs consumer-protection claims). 5. Minnesota Conflicts Analysis Minnesota’s choice-of-law principles are substantially different from those of New York, Pennsylvania, California, and Illinois, though their application leads to the same result in this case. Under Minnesota conflicts jurisprudence, courts must first determine whether a conflict exists between the relevant laws. See Jacobson v. Universal Underwriters Ins. Grp., 645 N.W.2d 741, 745 (Minn.Ct.App.2002). If there is a conflict, courts must balance five choice-influencing factors, including “(1) Predictability of results; (2) Maintenance of interstate and international order; (3) Simplification of the judicial task; (4) Advancement of the forum’s governmental interest; and (5) Application of the better rule of law.” Nodak Mut. Ins. Co. v. Am. Family Mut. Ins. Co., 604 N.W.2d 91, 94 (Minn.2000) (citations omitted). Here, the Court has determined that there are actual conflicts between the relevant state consumer-protection laws. Moreover, in the discussion that follows, the Court finds that the first and second choice-influencing factors weigh overwhelmingly in favor of the application of the law of each Settlement Class member’s state of purchase, and the fourth factor concurs in that result. Though the third factor may tilt slightly in favor of Minnesota’s law," }, { "docid": "19308586", "title": "", "text": "the Restatement sets forth several factors that should be weighed against each other, given their relative importance with respect to the particular issue, in determining the law applicable to an issue: (a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicil, residence, nationality, place of incorporation and place of business of the parties. While section 188 of the Restatement sets forth the general principles which will guide a court’s examination, several subsequent sections in the Restatement further elucidate the weight given particular factors under more specific circumstances. Restatement, §§ 189-97. Section 192 of the Restatement, “Life Insurance Contracts,” provides that where a contract dispute involves life insurance contracts, which includes annuities such as the FIAs at issue here, the governing law is “the local law of the state where the insured was domiciled at the time the policy was applied for, unless, with respect to the particular issue, some other state has a more significant relationship.... ” See id. § 192, cmt. l(stating annuity contracts are governed by the same choice of law rules as are life insurance contracts). Though no Iowa court has had occasion to apply section 192 of the Restatement, the Iowa Supreme Court has applied the analogous section 193 of the Restatement, “Contracts of Fire, Surety or Casualty,” to further guide its application of the “most significant relationship” analysis. Gabe’s Const. Co., Inc. v. United Capitol Ins. Co., 539 N.W.2d 144, 146-47 (Iowa 1995) (applying section 193 of the Restatement, which provides for the application of “the local law of the state which the parties understood was to be the principal location of the insured risk during the term of the policy, unless, with respect to the particular issue, some other state has a more significant relationship ... to the transaction and the parties, in which event the local law of the other state will be applied”). Given the Iowa precedents which endorse the use of the Restatement choice of law rules, especially Gabe’s" }, { "docid": "15266423", "title": "", "text": "of the subject matter, and (5) the domicile or place of business of the contracting parties. Zurich Ins. Co. v. Shearson Lehman Hutton, Inc., 84 N.Y.2d 309, 618 N.Y.S.2d 609, 642 N.E.2d 1065, 1068 (N.Y.1994). Here, the first, second, third, and fourth factors clearly favor the application of the law of the state of purchase, for that is the situs of the parties’ contracting, negotiation, and performance on the sales contract for GTA:SA and the location of the subject matter of that sales contract. Further, the fifth factor is neutral because the defendants have their principal place of business in New York, while most purchasers of GTA:SA are likely domiciled in the state of purchase. In light of the foregoing, the significant-contacts test requires the application of the law of the state of purchase to Settlement Class members’ claims for breach of warranty and unjust enrichment. See, e.g., Dex-Cool, 241 F.R.D. at 316-19 (applying law of state where each plaintiff resides to breach-of-warranty claims); Chin, 182 F.R.D. at 457 (applying law of each plaintiffs home state to breach-of-warranty claims); Ford Ignition Switch, 174 F.R.D. at 347-48 (applying law of each plaintiffs home state to breach-of-warranty claims); see also Restatement (Second) of Conflict of Laws § 188(3) (“If the place of negotiating the contract and the place of performance are in the same state, the local law of this state will usually be applied....”). For the foregoing reasons, New York’s conflicts jurisprudence demands that the Court apply the law of the state wherein each Settlement Class member purchased his copy of GTA:SA. Moreover, for the reasons set forth below, the same result applies under the conflicts jurisprudence of Pennsylvania, California, Illinois, and Minnesota. 2. Pennsylvania Conflicts Analysis Pennsylvania choice-of-law rules are similar to those that apply in New York. In particular, under Pennsylvania law, courts must first determine whether there is a true conflict among the relevant laws, in the sense that the conflict implicates the pertinent jurisdictions’ legitimate interests. See Harsh v. Petroll, 840 A.2d 404, 418 (Pa.Cmwlth. 2003). If a true conflict exists, courts must then apply the law" }, { "docid": "7086823", "title": "", "text": "considered: “(a) the place of contracting, (b) the place of negotiation of the' contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and. place of business of the parties.” Restatement (Second) of Conflict of Laws section 188(2). Viacom, Inc. v. Transit Cas. Co., 138 S.W.3d 723, 724-25 (Mo.2004) (en banc). Section 188 gives more weight to “the principal location of the insured risk” than any other single choice-of-law, significant relationship factor. Egnatic v. Nguyen, 113 S.W.3d 659, 665 (Mo.Ct.App.2003). In this case, the policy does not contain a choice-of-law provision. Thus, the court must look to the Restatement factors. The undisputed facts indicate that Missouri has the most significant relationship to the incident and the parties at bar. One of the parties is a Missouri corporation with its place of business in Missouri. And plaintiff produced both the original non-conforming and the later conforming products at its Missouri die-cutting business location in the City of St. Louis. The parties do not expressly dispute the application of Missouri law. The preeminent issue is whether Die-Cutting’s expenses in providing its customer with a replacement product that conformed with its contract with its customer are covered under the insurance policy at issue. The court must interpret the insurance contract at issue as a matter of law. Assicurazioni Generali S.P.A. v. Black & Veatch Corp., 362 F.3d 1108, 1111 (8th Cir.2004) (district court interpretation of an insurance policy a question of law); Universal Underwriters Ins. Co. v. Lou Fusz, 300 F.Supp.2d 888, 893 (E.D.Mo.2004) (same). Die-Cutting argues the policy’s coverage clause is ambiguous and should be construed in its favor. Insurance contracts must be construed to afford plain meaning to unambiguous language and read ambiguous terms against the insurer. Fremont Indem. v. Lawton-Byrne-Bruner Ins. Agency Co., 701 S.W.2d 737 (Mo.App.1985). Under Missouri law, an allegedly ambiguous phrase must be considered in the context of the policy as a whole. Nixon v. Life Investors Ins. Co., 675 S.W.2d 676 (Mo.App.1984). Ambiguity exists in an insurance contract if duplicity, indistinctness" }, { "docid": "8265556", "title": "", "text": "A.2d 1187, 1189 (1986)) (internal citations omitted). Plaintiffs’ claims can be categorized into three groups: those that sound in contract or quasi-contract, those that sound in tort, and those that sound in fraud. Each category will require the Court to undertake a slightly different choice-of-law analysis. For Plaintiffs’ contract claims, the Court considers the factors described in the Restatement (Second) of Conflict of Laws § 188. See CSR Ltd. v. Cigna Corp., No. 95-2947, 2005 WL 3132188, *13 (D.N.J. Nov. 21, 2005) (“In so doing, the New Jersey Supreme Court requires that courts consider the guidance of the Restatement.”). As one court has explained: In the context of contract matters, the Restatement provides that “[i]f the place of negotiating the contract and the place of performance are in the same state, the local law of this state will usually be applied” unless the principles stated in § 6 dictate a different result. Section 188 offers various contacts for courts to consider in applying the principles of § 6 to contract issues, including: “(a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties.” “These contacts are to be evaluated according to their relative importance with respect to the particular issue.” Id. at *13 (internal citations omitted) (citing Gilbert Spruance Co. v. Pa. Mfrs.’ Assoc. Ins. Co., 134 N.J. 96, 629 A.2d 885, 888 (1993)). In tort cases, “four factors must be taken into account: 1) the place where the injury occurred; 2) the place where the conduct causing the injury occurred; 3) the domicile, residence, nationality, place of incorporation, and place of business of the parties; and 4) the place where the relationship, if any, between the parties is centered.” Weisbrot v. Schwimmer, No. 97-2711, 2007 WL 2683642, *3 (D.N.J. Sept.7, 2007) (citing Lebegern v. Forman, 471 F.3d 424, 428-29 (3d Cir.2006)). For tort claims that sound in fraud the Restatement lists several relevant contacts to determine" }, { "docid": "15733845", "title": "", "text": "not only to its own relevant policies ... but also to the relevant policies of all other interested states.”); Restatement (See-ond) of Conflict of Laws § 145 cmt. e (\"[T]he forum should give consideration to the relevant policies of all potentially interested states.”). . The insuperability of this problem, if plain! tiffs had met their burden, is suggested in another recent case, where a district court refused to certify a class action case against Ford Motor company based on claims arising in 51 jurisdictions: “Defendants have provided a comprehensive appendix detailing the variations among the states’ laws on strict liability, breach of express and implied warranty, fraud, and consumer protection acts.... For example, regarding plaintiffs’ strict liability claim, alone, defendants point to at least five different approaches to defining a ‘design defect;' differing positions as to whether the 'economic loss doctrine' precludes strict liability actions; differing views as to whether physical harm is a prerequisite to bringing a cause of action; different warning requirements; and different affirmative defenses. Defendants have likewise demonstrated a multitude of different standards and burdens of proof with regard to plaintiffs' warranty, fraud and consumer protection claims.” In re: Ford Motor Company Ignition Switch Products Liability Litigation, 174 F.R.D. 332, 350-51 (D.N.J.1997). . The district court also may well not have found Georgia law applied if it had performed an adequate choice of law analysis for the contracts issue. Section 188 of the Restatement sets forth contacts to consider in regard to a contract issue. They include: 1) the place of contracting; 2) the place of negotiation; 3) the place of performance; 4) the location of the contract’s subject matter; and 5) the domicile, residence, place of incorporation and place of business of the parties. See Restatement (Second) of Conflict of Laws § 188. Glock USA is incorporated and has its principal place of business in Georgia, but plaintiffs are domiciled in the 50 states and the District of Columbia. The place of contracting would presumably be the place of purchase; the location of performance and the location of the subject matter of the contract would" }, { "docid": "5791494", "title": "", "text": "and Dunavant construed section 75-1-105 to require application of the significant contacts analysis, and are particularly relevant in light of this court’s determination that the 1978 amendment to section 75-1-105 did not abrogate that requirement. In Bunge the court adopted the following factors from section 188 of the Restatement (Second) Conflict of Laws in determining the applicable law in the absence of a choice of law by the parties: (a) the place of contract, (b) the place of negotiation of contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties. 481 F.Supp. at 1164. None of these factors point to Mississippi for application of its laws to the instant action. As stated, the place of contracting between ITT and the Army was New Jersey. The contract was negotiated in either New Jersey, Virginia or California, but the performance and the location of the subject matter of the contract on the day of delivery was in California. The court therefore concludes that the weight of these factors points to California. While it appears that California law requires privity of contract or that plaintiff be a member of the purchaser’s household to maintain an action for breach of implied warranties, Halter v. Zogarts, 14 Cal.3d 104, 534 P.2d 377, 120 Cal.Rptr. 681 (Cal.1975), this court does not rest its determination on the lack of privity in this wrongful death action. Rather, the critical issue is whether this action is time-barred. The parties do not dispute that California regards its statutes of limitations as matters of procedural rather than substantive law. Thus, under the teaching of numerous cases the most recent of which is Davis v. National Gypsum Co., 743 F.2d 1132, 1134 (5th Cir.1984), it would appear that a Mississippi court would be justified in applying the appropriate Mississippi statute, section 75-2-725, to this case. Plaintiffs contend that their warranty claims arise under both the Mississippi Commercial Code and Mississippi common law, and that their claims for breach of common" }, { "docid": "19308585", "title": "", "text": "S.Ct. 1020, 85 L.Ed. 1477 (1941). Iowa has adopted the Restatement (Second) of Conflict of Laws (1971) (hereinafter “Restatement”) as its choice-of-law provision. Cole v. State Auto. & Cas. Underwriters, 296 N.W.2d 779, 781 (Iowa 1980); see also Washburn v. Soper, 319 F.3d 338, 342 (8th Cir.2003) (collecting citations). Du-chardt argues that the “most significant relationship test” set forth in section 188 of the Restatement is controlling and that test will require the application of Iowa law to each of the breach of contract claims. Midland counters that section 192 of the Restatement also applies and, therefore, the Court will be required to examine each policy under the state law where the policy holder was domiciled and the policy was issued. Generally in contract eases, Iowa applies section 188 of the Restatement, “Law Governing in Absence of Effective Choice by the Parties,” which states that the law of the state with the most significant relationships or interests in the transaction should be applied to the contract dispute. Cole, 296 N.W.2d at 781. Section 188(2) of the Restatement sets forth several factors that should be weighed against each other, given their relative importance with respect to the particular issue, in determining the law applicable to an issue: (a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicil, residence, nationality, place of incorporation and place of business of the parties. While section 188 of the Restatement sets forth the general principles which will guide a court’s examination, several subsequent sections in the Restatement further elucidate the weight given particular factors under more specific circumstances. Restatement, §§ 189-97. Section 192 of the Restatement, “Life Insurance Contracts,” provides that where a contract dispute involves life insurance contracts, which includes annuities such as the FIAs at issue here, the governing law is “the local law of the state where the insured was domiciled at the time the policy was applied for, unless, with respect to the particular issue, some other state has a" }, { "docid": "7331009", "title": "", "text": "its principal place of business in California. 4. The pumps were originally purchased by different entities in nine states, Colorado, Illinois, Texas, Oregon, Washington, California, North Carolina and Idaho. 5. The pumps are presently located in four different states, Colorado, Texas, Georgia, and California. 6. Third and fourth plaintiffs purchased and/or leased the pumps from first plaintiff in Colorado. 7. The products were designed in California. The choice, as the parties recognize, must be between Colorado and California. I am satisfied that application of the above test to these connectors clearly posits that Colorado law should govern the tort issues. In so concluding, I attach particular importance to the fact the relationship between the parties as a whole was centered here, first and second plaintiffs being Colorado corporations and the leasing arrangements having been executed here. The domicile, residence, place of incorporation and place of business of the parties and the place where the relationship of the parties is centered assumes pivotal importance in determining the applicable law in negligence suits, Sabell v. Pacific Intermountain Express Co., 36 Colo.App. 60, 536 P.2d 1160 (1975). Further, the place the injury occurred, rather than the place of manufacture, provides the most compelling policy concerns in situations such as the present, Hickman v. Thompson, 592 F.Supp. 1282, 1286 (D.Colo.1984). Finally, the most important factors to be considered in this context are those contained in § 6(b) and (c) of the Restatement, Conlin v. Hutcheon, 560 F.Supp. 934, 936 (D.Colo.1983). These point to Colorado law. B. The contract claims The contracts ‘contacts’ test is not identical to that employed for the resolution of tort conflicts problem. Given the differing policy considerations applying to interstate contract and tort problems, it is conceivable that different governing laws will emerge from the same fact pattern. Colorado applies the ‘most significant relationship’ rule contained in § 191 of the Restatement, Webb v. Dessert Seed Co. Inc., Colo., 718 P.2d 1057 (1986). This points, in the absence of express choice by the parties, to the place of delivery unless the considerations outlined in § 6 dictate another state has" }, { "docid": "15266471", "title": "", "text": "used their allegedly defective [products] or the place where Plaintiffs’ alleged damages occurred.\" See, e.g., Chin, 182 F.R.D. at 457; Ford Ignition Switch, 174 F.R.D. at 348. The Court holds more precisely that the law of each Settlement Class member's state of purchase should apply to his claims. Even assuming that it is the law of each plaintiff s state of residence that governs, however, that would still necessitate the application of the laws of the fifty states and the District of Columbia, which defeats predominance for the reasons stated infra, in Part II.B. . See supra note 12. . The \"interest/contacts” approach applies to both tort and contracts cases. See Hammersmith v. TIG Ins. Co., 480 F.3d 220, 227-29 (3d Cir.2007). As such, there is no need to analyze separately the application of Pennsylvania's choice-of-law principles to the plaintiffs' claims of consumer fraud, breach of warranty, and unjust enrichment. In any event, even assuming that certain considerations are relevant to a Pennsylvania contracts conflicts-analysis, but not relevant to a torts conflicts-analysis, the Court has already determined in its application of New York’s choice-of-law principles that the law of the state of purchase has the most significant contacts with the sales contract into which Settlement Class members entered at the time they purchased GTA:SA. . See supra note 12. . See supra note 12. . This two-part test applies in contracts and torts cases alike. See, e.g., Jepson v. Gen. Cas. Co. of Wis., 513 N.W.2d 467, 470 (Minn.1994) (case with tort and contract components). Schumacher v. Schumacher, 676 N.W.2d 685, 689-92 (Minn.Ct.App.2004) (tort case). . Minnesota law requires that conflicts be outcome-determinative. See Nodak Mut. Ins. Co., 604 N.W.2d at 94. Because, as the Court discusses below, the individualized reliance issues found in some states’ consumer-fraud laws preclude class certification under those states’ laws, see infra Part II.B; and as the privity requirement found in some states’ warranty laws bars the claims of many Settlement Class members, see infra Part II.B.2.b; and given that the laws of some states preclude the maintenance of a class-action suit for consumer fraud," }, { "docid": "12295769", "title": "", "text": "requirement,” thus breach of implied warranty claims hinge on state law, namely, Illinois’ adoption of UCC Article 2 requiring privity of contract. See Voelker, 353 F.3d at 525; see also Rothe, 119 Ill.2d at 294, 116 Ill.Dec. 207, 518 N.E.2d 1028 (under the UCC, implied warranty of merchantability arises only between buyer and immediate seller). In short, the Voelker court did not adopt the Illinois court’s interpretation that the MMWA broadened the UCC’s requirements by allowing for non-privity parties to bring implied warranty claims, and Plaintiff fails to persuade the Court why it should conclude otherwise. Indeed, other courts in this district have already rejected that precise argument. See Snyder v. Komfort Corp., 2008 WL 2952300, at *5-6 (N.D.Ill. July 30, 2008); Zaro v. Maserati N. Am., Inc., 2007 WL 4335431, at *3-4 (N.D.Ill.Dec.6, 2007); Howton v. Winnebago, Inc., 2005 WL 1500926, at *2 (N.D.Ill. June 13, 2005); Kowalke v. Bernard Chevrolet, Inc., 2000 WL 656660, at *5 (N.D.Ill. Mar.23, 2000); Lairy J. Soldinger Assocs., Ltd. v. Aston Martin Lagonda of N.A., Inc., 1999 WL 756174, at *6-10 (N.D.Ill. Sept.13, 1999). Because Plaintiff lacks privity of contract with Monaco, its implied warranty claim fails. See Voelker, 353 F.3d at 525. Plaintiff attempts to skirt the privity requirement by alleging that BMS is an agent of Monaco due to the “great control” Monaco exerts over BMS. PI. Resp. at 13. However, Plaintiff has not cited any Illinois law that accepts such a contention. In fact, in Illinois, bare allegations of an agency relationship between the manufacturer and dealer are insufficient. See, e.g., Bushendorf v. Freightliner Corp., 13 F.3d 1024, 1026 (7th Cir.1993). In Zaro v. Maserati N. Am., Inc., the court observed that there is “no Illinois case law supporting the proposition that a general agency prin ciple creates privity between a purchaser and a non-selling manufacturer. Moreover, ‘an automobile dealer or other similar type of dealer, who * * * merely buys goods from manufacturers or other suppliers for resale to the consuming public, is not his supplier’s agent.’ ” Zaro, 2007 WL 4335431, at *4 (quoting Bushendorf, 13 F.3d" } ]

[ { "docid": "16700043", "title": "", "text": "bankruptcy court’s decision to determine whether its factual findings are clearly erroneous and its legal conclusions, which are subject to de novo review on appeal, are correct. Education Assistance Corp. v. Zellner, 827 F.2d 1222, 1224 (8th Cir.1987). It is important to bear in mind that when a district court acts as an appellate court, as it does when it reviews a bankruptcy proceeding, the district court is subject to the same limitations which are imposed upon any appellate tribunal. This means that the district court may not make its own independent factual findings. If the bankruptcy court’s factual findings are silent or ambiguous as to an outcome determinative factual question, the district court may not engage in its own factfinding but, instead, must remand the case to the bankruptcy court for the necessary factual determination. E.g. In re Walker, 726 F.2d 452, 454-55 (8th Cir.1984); In re Neis, 723 F.2d 584, 588-90 (7th Cir.1983). Edward M. Johnson and Associates, 845 F.2d at 1401 (quoting Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987)). The district court in this case did not exceed its authority by making improper factual findings. Rather, the district court failed to exercise its authority to review the bankruptcy court’s decision in an appropriate manner. The district court’s decision does not contain any determination that the bankruptcy court’s findings of fact are erroneous, or that the bankruptcy court reached incorrect conclusions of law. The district court’s “impression” that something may be wrong with the bankruptcy court’s confirmation of the plan conveys to us no concrete ruling. We are certain it would not provide the bankruptcy court with any enlightenment as to how it may or may not have erred. When a fact-finder determines that a ball is red, an appellate tribunal reviewing that decision has various options. If the appellate court determines that the lower court’s factual determination of the color of the ball is correct, the appellate court may affirm that the ball is red. If the reviewing court concludes that the record does not support the conclusion that the ball is red, the appellate" } ]

[ { "docid": "4024722", "title": "", "text": "Financial Group, 576 F.2d at 222. Therefore, the cases on which Sun relies are distinguishable because in each of those cases the bankruptcy court had either made no factual findings or ambiguous factual findings, requiring remand to the bankruptcy court. See 550 West Ina Road Trust v. Tucker, 989 F.2d 328, 330 (9th Cir.1993) (good faith); Great Western Bank v. Sierra Woods Group, 953 F.2d 1174, 1176 (9th Cir.1992) (fairness); Oaks of Woodlake Phase III, Ltd. v. Hall, Bayoutree Assocs., 939 F.2d 802, 804-05 (9th Cir.1991) (bad faith). In the present case, there was no similar need to remand this case to the bankruptcy court because the district court was faced with a question of law, not fact. Sun also contends that it was deprived of notice that the district court would consider the property interest issue because “the narrow issue of the existence, nature, and extent of Selnick’s rights was not contemplated in the broader issue of the confirmation order appeal.” We disagree because Selnick’s notice of appeal stated that she was appealing the bankruptcy court’s ruling that she “did not have an ownership interest in marital assets pursuant to the equitable distribution made at the time of the divorce of the parties.” The notice of appeal was therefore sufficient to put Sun on notice that the money judgment ruling would be considered with the Confirmation Order appeal. Finally, Sun asks us to decide whether Selnick’s property interest in the Pension Plan assets is subject to Sun’s direct claim against the Pension Plan. Sun won a judgment against the Pension Plan in the United States Bankruptcy Court for the District of New Jersey, but that judgment was reversed on appeal by the United States District Court for the District of New Jersey. Although, Sun has appealed the district court’s reversal of that judgment to the Third Circuit, that appeal has not yet been decided. Because Sun’s claim against the Pension Plan is contingent on the outcome of this undecided appeal, we decline to reach this issue as it is not yet ripe for review. See Poland v. Stewart, 117" }, { "docid": "18503807", "title": "", "text": "28 U.S.C. § 158(c). In a bankruptcy appeal, a district court will subject the bankruptcy court’s determinations of law to de novo review. In re Sublett, 895 F.2d 1381, 1383 (11th Cir.1990). The district court will apply the \"clearly erroneous” standard of review to the bankruptcy court’s factual findings. Id.; Bankr.Rule 7052 (incorporating Fed.R.Civ.P. 52); Bankr.Rule 8013. The district court is not authorized to make independent factual findings; that is the function of the bankruptcy court. In re Sublett, 895 F.2d at 1383 (citing Bankr.Rules 7052, 8013, and Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987)). If the bankruptcy court’s factual findings are ambiguous or silent as to an outcome-determinative factual question, the district court must remand the case to the bankruptcy court. Id. The drafters of the amendment to section 305 clearly intended that in most cases the bankruptcy court should make the initial determination of whether to issue a section 305 order. See Report of the Federal Courts Study Committee, part II, p. 77, part III, pp. 371-374. The Committee recognized that in most cases the decision to abstain from a bankruptcy case turns on considerations unique to bankruptcy law and thus is especially suited for the expertise of the bankruptcy court. Id. III. CONCLUSION For the foregoing reasons, we REVERSE and REMAND to the district court. . The parties dispute whether the West German court directed Goerg to collect all of Kaussen’s assets. . Section 304 governs cases filed in bankruptcy courts that are related to foreign bankruptcy proceedings, e.g., where a foreign debtor has assets in this country. 11 U.S.C. § 304. . At the time the district court considered this appeal, section 305(c) stated that an order \"dismissing a case or suspending all proceedings in a case, or a decision not to so dismiss or suspend, is not reviewable by appeal or otherwise.” 11 U.S.C.A. § 305(c) (West 1979). .At the time we heard the argument in Park-lane, supra, section 305(c) had not yet been amended. See Federal Courts Study Committee Implementation Act of 1990, Pub.L. 101-650, § 309, 104 Stat. 5113 (Dec. 1," }, { "docid": "18489609", "title": "", "text": "on the merits and thus dismissal must be without prejudice). For example, under Rule 41(b), Fed.R. Civ.P., although a dismissal normally operates as an adjudication on the merits, one exception to this rule is a dismissal for improper venue. A dismissal for improper venue is specifically excluded from the types of dismissals that operate as an adjudication on the merits. Fed.R.Civ.P. 41(b). We hold that the discretion given to the district court under Bankruptcy Rule 1014(a)(2) and 28 U.S.C. § 1406(a) to dismiss a case for improper venue does not include the power to dismiss a case with prejudice. Ill We now consider whether the issue of bad-faith filing was properly before the district court. The designation of issues on appeal to the district court was limited to the question of venue. However, the record on appeal included the motion to dismiss for bad-faith filing that had been filed in the bankruptcy court. A district court, reviewing a bankruptcy appeal, can decide an issue that is not raised on appeal, if that issue is purely legal and is fully supported by the record. See In re Pizza of Hawaii, Inc., 761 F.2d 1374, 1377 (9th Cir.1985). If the bankruptcy court’s factual findings are silent or ambiguous as to a material, factual question, the district court must remand the case to the bankruptcy court for the necessary factual determination; the district court may not make its own independent factual findings. See Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987). The question whether a bankruptcy case was filed in bad faith is a factual question. See In re Chisum, 847 F.2d 597, 599 (9th Cir.), cert. denied sub nom. Mortgage Mart, Inc. v. Rechnitzer, Trustee in Bankruptcy, et al., 488 U.S. 892, 109 S.Ct. 228, 102 L.Ed.2d 218 (1988). The district court, thus, was not free to make its own determination of bad faith. The district court should have remanded the case to the bankruptcy court for factual findings on that question. IV We turn next to the question whether the district court withdrew the reference to the bankruptcy court by" }, { "docid": "3453713", "title": "", "text": "LAWSON, District Judge. Before this Court is an appeal from the United States Bankruptcy Court for the Middle District of Georgia brought by Ricky W. Bracewell. The bankruptcy court held that a crop disaster payment, created by federal legislation enacted after Appellant converted his Chapter 12 case to a Chapter 7 case, qualified as property of the estate under 11 U.S.C.A. § 541(a)(1) (West 2004), but not under § 541(a)(6). For the reasons set forth below, the bankruptcy court’s decision is reversed in part and affirmed in part. I. JURISDICTION and STANDARD OF REVIEW Under 28 U.S.C.A. § 158(a)(1), this Court has jurisdiction to hear a final judgment, order, or decree from a United States Bankruptcy Court. 28 U.S.C.A. § 158(a)(1) (West 1993 & Supp.2004); see Fed. R. Bankr.P. 8001. The bankruptcy court’s order was final within the meaning of § 158(a)(1); thus, this Court has jurisdiction to hear this appeal. When adjudicating an appeal from a bankruptcy court, federal district courts are empowered to “affirm, modify, or reverse a bankruptcy judge’s judgment, order, or decree” and will accept the bankruptcy court’s factual findings unless those findings are clearly erroneous. Fed. R. Bankr.P. 8013; see Equitable Life Assurance Soc’y v. Sublett (In re Sublett), 895 F.2d 1381, 1383 (11th Cir.1990); see also Club Assocs. v. Consol. Capital Realty Investors (In re Club Assocs.), 951 F.2d 1223, 1228 (11th Cir.1992). A district court is not empowered to make independent findings of fact. In re Sublett, 895 F.2d at 1384. Moreover, if a bankruptcy court’s findings are “silent or ambiguous as to an outcome determinative factual question,” remand to the bankruptcy court is required. Id. (quoting Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987)). In contrast to factual findings, conclusions of law, including a bankruptcy court’s interpretation and application of the Bankruptcy Code (“the Code”), are reviewed de novo. See Nordberg v. Arab Banking Corp. (In re Chase & Sanborn Corp.), 904 F.2d 588, 593 (11th Cir.1990). Whether property constitutes property of the bankruptcy estate is a legal issue to be reviewed de novo. Witko v. Menotte (In re Witko), 374" }, { "docid": "18605036", "title": "", "text": "a 3% annual surcharge on the underlying contractual rate of 9%, on the principal portions of the unpaid installments from 1984 to 1988. Third, Equitable claimed $28,142.03 in attorney’s fees that it had incurred in the course of the litigation. Fourth, Equitable claimed $4,152.73 in interest, computed at an annual rate of 12%, on the foregoing attorney’s fees. Equitable agreed to accept payment of the undisputed $943,537.50 and the remaining $128,025.77 was placed in an escrow account. On September 23, 1988, the bankruptcy court awarded Equitable attorney’s fees, but disallowed its claims for interest on the unpaid installments and interest on the attorney’s fees. Equitable appealed to the district court. The Subletts did not cross-appeal to the district court and have not challenged the award of attorney’s fees. On April 3,1989, the district court affirmed the bankruptcy court's disallowance of the interest on the unpaid installments and reversed the bankruptcy court’s disallowance of the interest on attorney’s fees. Equitable appeals to this Court on the former issue, and the Subletts cross-appeal on the latter issue. II. DISCUSSION A. Standard of Review This Court’s standard of review with regard to determinations of law, whether made by the bankruptcy court or by the district court, is de novo. With regard to the bankruptcy court’s factual determinations, “clearly erroneous” review applies. See In re Thomas, 883 F.2d 991, 994 (11th Cir.1989); Bankr.Rule 7052 (incorporating Fed.R.Civ.P. 52); Bankr.Rule 8013. The district court in a bankruptcy appeal, like this Court itself, functions as an appellate court in reviewing the bankruptcy court’s decision. See 28 U.S.C.A. § 158(a), (c). Neither the district court nor this Court is authorized to make independent factual findings; that is the function of the bankruptcy court. See Bankr.Rules 7052, 8013; Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987). “If the bankruptcy court’s factual findings are silent or ambiguous as to an outcome determinative factual question, the district court ... must remand the case to the bankruptcy court for the necessary factual determination.” Wegner, 821 F.2d at 1320. Moreover, “[a]s the second court of review,” this Court’s review of the district" }, { "docid": "14944472", "title": "", "text": "as an appellate court] may not make its own independent factual findings. If the bankruptcy court’s factual findings are silent or ambiguous as to an outcome determinative factual question, the district court may not engage in its own factfinding but, instead, must remand the case to the bankruptcy court for the necessary factual determination. Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987); accord Rush v. JLJ Inc. (In re JLJ Inc.), 988 F.2d 1112, 1116 (11th Cir.1993); In re Apex Oil Co., 960 F.2d 728, 731 (8th Cir.1992); Oaks of Woodlake Phase III, Ltd., v. Hall, Bayoutree Assocs., Ltd. (In re Hall, Bayoutree Assocs., Ltd.), 939 F.2d 802, 804 (9th Cir.1991); Hardin v. Caldwell (In re Caldwell), 851 F.2d 852, 857 (6th Cir.1988). Applying these standards to the instant case, the district court erred by concluding Plaintiff willfully failed to pay over taxes to the government in the absence of fact findings on this issue from the bankruptcy court. E.g., Wegner, 821 F.2d at 1320. “In a bankruptcy proceeding, the bankruptcy court is the finder of fact,” In re Caldwell, 851 F.2d at 857, and the district court functions as an appellate court. The bankruptcy court did not reach the issue of willfulness and therefore made no findings on the issue. As a result, the district court determined this issue without a proper record. We therefore reverse the district court’s determination that Plaintiff willfully failed to pay taxes to the government under § 6672. We remand with instructions to the district court to re mand to the bankruptcy court to make findings of fact on the issue of willfulness. C. Plaintiff also contends the district court erroneously concluded that the penalty assessment made by the IRS was valid. Specifically, Plaintiff argues that the assessment made by the IRS in the instant ease was invalid because it was made in an aggregate, lump sum amount representing nine quarters, instead of separate quarterly assessments. Plaintiff maintains that just as the IRS collects employment taxes quarterly, it must assess a § 6672 penalty quarterly instead of in an aggregate lump sum amount." }, { "docid": "4024721", "title": "", "text": "the divorce court’s entry of judgment against both Debtor and the Pension Plan did not extinguish Selnick’s property interest in the Pension Plan assets. For these reasons, Debtor’s reliance on Kessler v. Old Guard Mut. Ins. Co., 391 Pa.Super. 175, 570 A.2d 569, 573 (1990), is misplaced. Debtor and Sun rely on Boggs v. Boggs, 520 U.S. 833, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997), to contend that Selnick cannot hold a property interest in the Pension Plan because the divorce court did not issue Selnick a QDRO. This argument is without merit because the Pension Plan was not an ERISA-'qualified plan on the petition date. Therefore, Boggs does not apply. Sun contends that the money judgment finding was not properly before the district court because the bankruptcy court failed to, make the necessary findings of fact for the district court to review, and that therefore the district court impermissibly considered the issue. We disagree because, as stated above, the interpretation of the Divorce Decree is a question of law, not of fact. Cf. United Financial Group, 576 F.2d at 222. Therefore, the cases on which Sun relies are distinguishable because in each of those cases the bankruptcy court had either made no factual findings or ambiguous factual findings, requiring remand to the bankruptcy court. See 550 West Ina Road Trust v. Tucker, 989 F.2d 328, 330 (9th Cir.1993) (good faith); Great Western Bank v. Sierra Woods Group, 953 F.2d 1174, 1176 (9th Cir.1992) (fairness); Oaks of Woodlake Phase III, Ltd. v. Hall, Bayoutree Assocs., 939 F.2d 802, 804-05 (9th Cir.1991) (bad faith). In the present case, there was no similar need to remand this case to the bankruptcy court because the district court was faced with a question of law, not fact. Sun also contends that it was deprived of notice that the district court would consider the property interest issue because “the narrow issue of the existence, nature, and extent of Selnick’s rights was not contemplated in the broader issue of the confirmation order appeal.” We disagree because Selnick’s notice of appeal stated that she was appealing the" }, { "docid": "10175461", "title": "", "text": "court’s factual findings are silent or ambiguous as to an outcome determinative factual question, the district court may not engage in its own factfinding but, instead, must remand the case to the bankruptcy court for the necessary factual determination. E.g. In re Walker, 726 F.2d 452, 454-55 (8th Cir.1984); In re Neis, 723 F.2d 584, 588-90 (7th Cir.1983). Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987). Since the bankruptcy court did not make a factual finding as to whether Johnson was entitled to any salary from J & A for 1984, it was inappropriate for the district court to determine this in the first instance. The record evidence on this issue “is subject to differing interpretations and the findings of the bankruptcy court, as indicated, are not presently acceptable as decisive of the basic issue.” In re Walker, 726 F.2d 452, 454 (8th Cir.1984). Accordingly, we must reverse the district court on this issue and remand to that court with instructions to remand to the bankruptcy court for additional findings of fact and conclusions of law. The judgment of the district court is REVERSED and the cause is REMANDED for further proceedings not inconsistent with this opinion. . Leon Steinberg, Trustee, the original plaintiff in this action, died pending this appeal. Mr. Newton, the duly appointed and qualified successor trustee, was substituted as plaintiff pursuant to Rule 43(c) of the Federal Rules of Appellate Procedure. . The Trustee does not dispute the determination that Johnson gave reasonably equivalent value to this extent. . As has been seen, the district court construed Johnson’s agreement to the effect that liabilities of J & A, as of March 1, 1984, would be paid. Johnson appears to agree with this interpretation. So also did the bankruptcy judge. Accordingly, we need not deal with the problem that would have been presented if Johnson’s commitment were only that the liabilities had been paid. . Section 133 of the Restatement of Contracts (1932) states: (1) Where performance of a promise in a contract will benefit a person other than the promisee, that person is ... (a)" }, { "docid": "14944471", "title": "", "text": "concluding he willfully failed to pay over taxes to the government in the absence of any factual determination on that point from the bankruptcy court. Specifically, Plaintiff argues the district court sitting as a court of appeal should have remanded to the bankruptcy court to make a factual finding on the issue of willfulness. The IRS maintains it is apparent on the face of the record that Plaintiff willfully failed to pay over the taxes to the government and therefore the district court’s determination was proper. “Willfullness, in the context of section 6672, means a ‘voluntary, conscious and intentional decision to prefer other creditors over the Government.’ ” Denbo, 988 F.2d at 1033. “A responsible person’s failure to investigate or to correct mismanagement after being notified that withholding taxes have not been paid satisfies the section 6672 willfulness requirement.” Id. Both this court and the district court are bound by the factual findings of the bankruptcy court unless those findings are clearly erroneous. In re Herd, 840 F.2d at 759. Additionally, the district court [acting as an appellate court] may not make its own independent factual findings. If the bankruptcy court’s factual findings are silent or ambiguous as to an outcome determinative factual question, the district court may not engage in its own factfinding but, instead, must remand the case to the bankruptcy court for the necessary factual determination. Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987); accord Rush v. JLJ Inc. (In re JLJ Inc.), 988 F.2d 1112, 1116 (11th Cir.1993); In re Apex Oil Co., 960 F.2d 728, 731 (8th Cir.1992); Oaks of Woodlake Phase III, Ltd., v. Hall, Bayoutree Assocs., Ltd. (In re Hall, Bayoutree Assocs., Ltd.), 939 F.2d 802, 804 (9th Cir.1991); Hardin v. Caldwell (In re Caldwell), 851 F.2d 852, 857 (6th Cir.1988). Applying these standards to the instant case, the district court erred by concluding Plaintiff willfully failed to pay over taxes to the government in the absence of fact findings on this issue from the bankruptcy court. E.g., Wegner, 821 F.2d at 1320. “In a bankruptcy proceeding, the bankruptcy court is the" }, { "docid": "16126600", "title": "", "text": "appealed the bankruptcy court’s decision to the district court which overturned the $170,-106.30 enhancement. The district court found that the bankruptcy court abused its discretion by granting the enhancement because it applied the wrong legal standard. The district court did agree that enhancements above the lodestar amount are proper in rare and exceptional circumstances. The court found, however, that the quality of representation and results obtained, by themselves, can never constitute rare and exceptional circumstances because these factors are presumptively reflected in either the number of hours billed or the hourly rate. The district court further found that exceptional service and results “may justify enhancement only in the rare case where specific evidence is offered to show that the lodestar amount failed to adequately compensate the examiner for the services provided, and the enhancement is necessary to make the award commensurate with compensation for comparable non-bankruptcy services.” Apex Oil Co. v. Palans (In re Apex Oil Co.), 132 B.R. 613, 615 (E.D.Mo.1991) (citation omitted). Applying this legal standard, the district court found that Palans was entitled to only a $45,288 enhancement. The court based its decision on evidence that Palans had billed his time at $20 less per hour than his standard hourly rate in non-bankruptcy matters. Palans appeals the district court’s decision. He requests this court to either reinstate the bankruptcy court’s order or remand to the bankruptcy court with instructions to make further findings under the correct legal standard. We conclude that the latter option is the appropriate course. II. Because the district court was acting as an appellate court, we review the district court’s factual and legal conclusions de novo. Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987). In essence, this court’s role is to “conduct an independent review of the bankruptcy court’s judgment, asking whether [its] legal conclusions are correct and whether its factual findings are clearly erroneous.” Id. If we conclude that the bankruptcy court’s findings are silent or ambiguous as to an outcome determinative factual question, we may not make our own findings but must remand the case to the bankruptcy court for" }, { "docid": "18605037", "title": "", "text": "II. DISCUSSION A. Standard of Review This Court’s standard of review with regard to determinations of law, whether made by the bankruptcy court or by the district court, is de novo. With regard to the bankruptcy court’s factual determinations, “clearly erroneous” review applies. See In re Thomas, 883 F.2d 991, 994 (11th Cir.1989); Bankr.Rule 7052 (incorporating Fed.R.Civ.P. 52); Bankr.Rule 8013. The district court in a bankruptcy appeal, like this Court itself, functions as an appellate court in reviewing the bankruptcy court’s decision. See 28 U.S.C.A. § 158(a), (c). Neither the district court nor this Court is authorized to make independent factual findings; that is the function of the bankruptcy court. See Bankr.Rules 7052, 8013; Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987). “If the bankruptcy court’s factual findings are silent or ambiguous as to an outcome determinative factual question, the district court ... must remand the case to the bankruptcy court for the necessary factual determination.” Wegner, 821 F.2d at 1320. Moreover, “[a]s the second court of review,” this Court’s review of the district court’s decision is entirely de novo. See id. Under traditional principles of contract law, the bankruptcy court’s interpretation of the loan instruments in this case is a legal determination subject to de novo review if the contractual language is unambiguous. Where the language is ambiguous, however, and requires consideration of extrinsic evidence of the actual intentions of the parties, the bankruptcy court’s determinations as to those intentions are findings of fact subject only to “clearly erroneous” review. See International Brotherhood of Boilermakers v. Local Lodge Dill, 858 F.2d 1559, 1561 (11th Cir.1988), cert. denied, — U.S. - 109 S.Ct. 1955, 104 L.Ed.2d 424 (1989); Brewer v. Muscle Shoals Board of Education, 790 F.2d 1515, 1519 (11th Cir.1986); see also In re Navigation Technology Corp., 880 F.2d 1491, 1495 (1st Cir.1989). Furthermore, the initial question whether the contractual language is ambiguous or not is itself a question of law. Boilermakers, 858 F.2d at 1561; accord Navigation Technology, 880 F.2d at 1495. B. Interest on the Unpaid Installments The Subletts contend, and the bankruptcy court held, that" }, { "docid": "3453714", "title": "", "text": "decree” and will accept the bankruptcy court’s factual findings unless those findings are clearly erroneous. Fed. R. Bankr.P. 8013; see Equitable Life Assurance Soc’y v. Sublett (In re Sublett), 895 F.2d 1381, 1383 (11th Cir.1990); see also Club Assocs. v. Consol. Capital Realty Investors (In re Club Assocs.), 951 F.2d 1223, 1228 (11th Cir.1992). A district court is not empowered to make independent findings of fact. In re Sublett, 895 F.2d at 1384. Moreover, if a bankruptcy court’s findings are “silent or ambiguous as to an outcome determinative factual question,” remand to the bankruptcy court is required. Id. (quoting Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987)). In contrast to factual findings, conclusions of law, including a bankruptcy court’s interpretation and application of the Bankruptcy Code (“the Code”), are reviewed de novo. See Nordberg v. Arab Banking Corp. (In re Chase & Sanborn Corp.), 904 F.2d 588, 593 (11th Cir.1990). Whether property constitutes property of the bankruptcy estate is a legal issue to be reviewed de novo. Witko v. Menotte (In re Witko), 374 F.3d 1040 (11th Cir.2004) (citing Bell-Tel Fed. Credit Union v. Falter (In re Falter), 292 F.3d 1350, 1352 (11th Cir.2002)). II. ISSUES ON APPEAL This Court must first determine the precise issue being appealed. Federal Rule of Bankruptcy Procedure 8006 provides, “[T]he appellant shall file with the clerk and serve on the appellee ... a statement of the issues to be presented.... [I]f the appellee has filed a cross appeal, the appellee as cross appellant shall file and serve a statement of the issues to be presented on the cross appeal.” Fed. R. Bankr.P. 8006. “An issue that is not listed pursuant to [Rule 8006] and is not inferable from the issues that are listed is deemed waived and will not be considered on appeal.” Snap-On Tools, Inc. v. Freeman (In re Freeman), 956 F.2d 252, 255 (11th Cir.1992) (emphasis added). Thus, as long as an issue is infer-able, then Rule 8006 “is not intended to bind either party to the appeal as to the issues that are to be presented.” In re Cohoes Indus." }, { "docid": "21608467", "title": "", "text": "insolvent; (2) McAdams and Mt. Pleasant received more than they would have received under a Chapter 7 liquidation proceeding; and (3) property transferred was property of the debtor’s estate. They also argue that the district court erred in concluding that the earmarking doctrine did not apply. In reviewing a bankruptcy court’s judgment, ordinarily a district court acts as an appellate court; reviewing the bankruptcy court’s legal conclusions de novo, and its findings of fact under the clearly erroneous standard. See Jennen v. Hunter (In re Hunter), 771 F.2d 1126, 1129 n. 3 (8th Cir.1985). The district court may not make its own independent factual findings. If the bankruptcy court’s factual findings are silent or ambiguous as to an outcome-determinative factual question, the district court may not engage in its own factfinding but must remand the case to the bankruptcy court for the necessary factual determination. Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987). Similarly, in most cases this court may not make an independent factual finding when the bankruptcy court’s decision is silent or ambiguous as to a crucial factual issue. Id. As the second court of review, this court asks whether the bankruptcy court’s legal conclusions are correct and whether its factual findings are clearly erroneous. Id. The burden of showing clearly erroneous findings is especially great where the findings are based primarily on oral testimony. Horner v. Mary Inst., 613 F.2d 706, 713 (8th Cir.1980). However, findings of fact by the district court are not jurisdictional in an appellate court, and we may render a decision (1) when the record sufficiently informs the court of the basis for the trial court’s decisions on the material issue, or (2) the contentions in the appeal do not turn on findings of fact. See Scoggins v. Board of Educ., 853 F.2d 1472, 1477 (8th Cir.1988). In a bankruptcy case, “remand is not necessary when the evidence is documentary, the facts are undisputed or the record presents no genuine issue of material fact.” In re Neis, 723 F.2d 584, 588 (7th Cir.1983). Much of the crucial evidence in this case is" }, { "docid": "18489610", "title": "", "text": "legal and is fully supported by the record. See In re Pizza of Hawaii, Inc., 761 F.2d 1374, 1377 (9th Cir.1985). If the bankruptcy court’s factual findings are silent or ambiguous as to a material, factual question, the district court must remand the case to the bankruptcy court for the necessary factual determination; the district court may not make its own independent factual findings. See Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987). The question whether a bankruptcy case was filed in bad faith is a factual question. See In re Chisum, 847 F.2d 597, 599 (9th Cir.), cert. denied sub nom. Mortgage Mart, Inc. v. Rechnitzer, Trustee in Bankruptcy, et al., 488 U.S. 892, 109 S.Ct. 228, 102 L.Ed.2d 218 (1988). The district court, thus, was not free to make its own determination of bad faith. The district court should have remanded the case to the bankruptcy court for factual findings on that question. IV We turn next to the question whether the district court withdrew the reference to the bankruptcy court by implication before making its findings on the bad-faith issue. If the district court had withdrawn the reference before making its bad-faith finding, it would have been free to hold a hearing and make its own factual findings. A district court has the power to withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown. 28 U.S.C. § 157(d) (1988). It is clear that, under § 157(d), a district court may withdraw reference at any time, for cause shown, but it is unclear whether it can withdraw reference by implication. The Fourth Circuit has held that the district court’s action of retaining jurisdiction on a question of sovereign immunity “effectively withdrew” a matter from the bankruptcy court. See Anderson v. Federal Deposit Ins. Corp., 918 F.2d 1139, 1142 (4th Cir.1990). Moreover, we have approved a district court’s withdrawing reference nunc pro tunc to justify deciding a non-core matter. See Mission Indians v. American Management & Amusement, Inc., 840" }, { "docid": "17515056", "title": "", "text": "not make, factual findings. The BAP should have instructed the bankruptcy court to decide in the first instance whether the Treadwells were partners and, if so, whether Larry knew or should have known of Carole’s fraud. We decline the parties’ joint invitation to review the BAP’s factual findings or make our own factual findings. While it is true the BAP may affirm a bankruptcy court’s decision on any basis supported by the record, see United States v. Pierson, 219 F.3d 803, 807 (8th Cir.2000), this familiar principle of appellate procedure does not empower the BAP to make factual findings. When factual issues are incomplete or remain unsettled on an alternative issue the bankruptcy court did not reach, the BAP ordinarily should remand to the bankruptcy court for further factual findings. See, e.g., Pullman-Std. v. Swint, 456 U.S. 273, 291-92 & n. 22, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (“When an appellate court discerns that a district court has failed to make a finding because of an erroneous view of the law, the usual rule is that there should be a remand for further proceedings to permit the trial court to make the missing findings.”); Brown v. Mt. Prospect State Bank (In re Muncrief), 900 F.2d 1220, 1224 (8th Cir.1990) (similar); Wegner v. Grunewaldt (In re Wegner), 821 F.2d 1317, 1320 (8th Cir.1987) (similar). The BAP itself should not have found Glenstone failed to prove the imputation of Carole’s fraud to Larry, because the bankruptcy court did not decide the underlying issues of partnership and intent, which turn on disputed facts, credibility determinations, and the inferences a fact finder may choose to draw therefrom. See In re Walker, 726 F.2d at 454 (“Whether a principal knew or should have known of his agent’s fraud is, of course, a question of fact.”). See also Agristor Credit Corp. v. Windle (In re Windle), 653 F.2d 328, 331 (8th Cir.1981) (“The deference owed by appellate courts to finders of fact is at its highest where the issue turns on the resolution of a direct conflict between live witnesses.”); Schneider v. Schneider, 347 Mo." }, { "docid": "17928793", "title": "", "text": "hypothecate or obtain a loan with the note as security. CCRI’s actions, therefore, neither breached nor triggered Club’s preemptive right.” Rl-10-12. On appeal to this court, Club has pursued its argument that CCRI effectively sold Club’s note to First Union. Club, therefore, contends that CCRI has violated Club’s contracted right of first refusal, and that First Union has interfered tortiously with Club’s preemptive first refusal right. Alternatively, Club argues that CCRI’s transaction with First Union substantially diminished the value of its first refusal right. II. ANALYSIS A. Standards of Review “ ‘As the second court of review’ ” of a bankruptcy court’s judgment, this court examines independently the bankruptcy court’s factual and legal determinations and employs-the same two review standards used by the district court. In re Sublett, 895 F.2d 1381, 1384 (Bankr. 11th Cir.1990) (quoting Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (Bankr. 8th Cir.1987)). Factual findings by the bankruptcy court are reviewed under the limited and deferential clearly erroneous standard. In re Sublett, 895 F.2d at 1383; In re Goerg, 930 F.2d 1563, 1566 (Bankr. 11th Cir.1991); see Fed.R.Bankr.P. 7052, 8013; see also In re Thomas, 883 F.2d 991, 994 (Bankr. 11th Cir.1989) (“The standard of review to be utilized by the court of appeals is the same as that to be utilized by the district court — ‘factual findings of the bankruptcy court cannot be set aside unless they are clearly erroneous.’ ” (quoting In re Downtown Properties, Ltd., 794 F.2d 647, 651 (Bankr. 11th Cir.1986))), cert. denied, — U.S. -, 110 S.Ct. 3245, 111 L.Ed.2d 756 (1990). Additionally, this court also has recognized that “a district court’s conclusion that a bankruptcy court’s factual finding is not ‘clearly erroneous’ is normally entitled to some persuasive weight.” In re Sublett, 895 F.2d at 1384 n. 5. Because neither the district court nor this court has the authority to make independent findings of fact, “ ‘[i]f the bankruptcy court’s factual findings are silent or ambiguous as to an outcome determinative factual question, the district court ... must remand the case to the bankruptcy court for the necessary factual determination.’" }, { "docid": "7700549", "title": "", "text": "on familiarity with the cost of living in Orange County, California. This approach is typical, see, e.g., In re Gyurci, 95 B.R. 639, 643 (Bankr.D.Minn. 1989), and may be appropriate where the court raises the substantial abuse issue sua sponte, see Kelly, 841 F.2d at 917 (noting that the presumption does not place on the judge the burden of producing evidence). Nevertheless, the fact that an expense appears excessive on its face does not excuse the requirement that a court’s findings be based on evidence. Treating the judge’s familiarity with local conditions as evidence renders any findings essentially unreviewable on the facts. While dismissal for substantial abuse is discretionary, the determination of abuse must be based on factual findings supported by admissible evidence, and not by what amounts to inappropriate judicial notice of the court’s own value judgments. There was no such evidence here. E. Bad Faith The bankruptcy court appeared to base its finding of substantial abuse in part on the Harrises’ failure to explain why they leased expensive vehicles when they were supposedly in financial difficulty, and their failure to explain their massive credit card debt — factors suggesting bad faith. Bad faith is also a factual question. See Oaks of Woodlake Phase III, Ltd. v. Hall, Bayoutree Assoc., Ltd. (In re Hall, Bayoutree Assocs., Ltd.), 939 F.2d 802, 804-05 (9th Cir.1991). The UST did not argue or present evidence of bad faith: the burden never shifted to the Harrises to explain the leases or the credit card debt, and any finding of bad faith was clear error. F. Possible Plan We may, in the absence of detailed findings, review a trial court’s order if a complete understanding of the issues may be obtained from the record as a whole, or if there is no genuine dispute about the facts as to which findings were omitted. Vance v. Am. Haw. Cruises, Inc., 789 F.2d 790, 792 (9th Cir.1986); Gardenhire v. IRS (In re Gardenhire), 220 B.R. 376, 380 (9th Cir. BAP 1998), rev’d on other grounds, 209 F.3d 1145 (9th Cir. 2000). In so doing, we may search" }, { "docid": "11022324", "title": "", "text": "the bankruptcy court’s finding that Niles breached no fiduciary duty by failing to offset subsequent commissions. IV. PRE JUDGMENT INTEREST The bankruptcy court did not rule on Otto’s request for prejudgment interest. The district court declined to award interest on the ground that it was a matter of discretion for the bankruptcy court. By failing altogether to rule on the request for interest, the bankruptcy court did not exercise its discretion. The district court should have remanded for a determination by the bankruptcy court. Oaks of Woodlake Phase III, Ltd. v. Hall, Bayoutree Assoc., Ltd. (In re Hall, Bayoutree Assoc., Ltd.), 939 F.2d 802, 804 (9th Cir.1991). Because the debt the court found to be nondischargeable arose under state law, see Grogan, 498 U.S. at 284, 111 S.Ct. at 657-58, the award of prejudgment interest on that debt is also governed by state law. Under California law, prejudgment interest is a matter of right where there is a vested right to recover “damages certain” as of a particular day. Cal.Civ.Code § 3287(a). Here, the amount of $8,914, which the court found to be owing, and whatever other amounts the court may find to be owing on remand, are a sum certain as of a. particular day, entitling Otto to prejudgment interest. The liability for that interest is nondischargeable because it is ancillary to a nondischargeable debt. See Florida v. Ticor Title Ins. Co. of California (In re Florida), 164 B.R. 636, 639 (Bankr.9th Cir.1994). V. CONCLUSION Accordingly, we VACATE the judgment insofar as it determined that the sums of $7,000 and $9,512.93 are dischargeable debts, and REMAND to the bankruptcy court for further proceedings consistent with this opinion. In all other respects the judgment is AFFIRMED. The parties shall bear their own costs on appeal. . Otto made other claims, in particular, a claim that Niles had embezzled funds, which were not preserved on appeal. . Because Niles herself testified that she received the $7,000 but had been authorized by Otto to retain it, the finding that she did not receive it is clearly erroneous. . Generalized statements that the" }, { "docid": "10175460", "title": "", "text": "miscarriage of justice.” Slodov v. United States, 552 F.2d 159, 162 (6th Cir.1977) (quoting McDowell v. John Deere Indus. Equip. Co., 461 F.2d 48, 50 (6th Cir.1972)), rev’d on other grounds, 436 U.S. 238, 98 S.Ct. 1778, 56 L.Ed.2d 251 (1978). The bankruptcy court determined that Johnson was entitled to $100,000 in salary for 1983 and held that, in connection with the fraudulent transfer issue, the amount constituted reasonably equivalent value. Although the bankruptcy court acknowledged that Johnson had not been paid salary for the period from January 1 to March 8,1984, the court did not discuss or make a finding as to Johnson’s entitlement to salary for this period. The district court reversed the bankruptcy court with respect to the salary entitlement for 1984, but did not find that a factual determination by the bankruptcy court was “clearly erroneous.” Rather, the district court opined that an oversight by the bankruptcy court had occurred. As an appellate court in this proceeding, the district court may not make its own independent factual findings. If the bankruptcy court’s factual findings are silent or ambiguous as to an outcome determinative factual question, the district court may not engage in its own factfinding but, instead, must remand the case to the bankruptcy court for the necessary factual determination. E.g. In re Walker, 726 F.2d 452, 454-55 (8th Cir.1984); In re Neis, 723 F.2d 584, 588-90 (7th Cir.1983). Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987). Since the bankruptcy court did not make a factual finding as to whether Johnson was entitled to any salary from J & A for 1984, it was inappropriate for the district court to determine this in the first instance. The record evidence on this issue “is subject to differing interpretations and the findings of the bankruptcy court, as indicated, are not presently acceptable as decisive of the basic issue.” In re Walker, 726 F.2d 452, 454 (8th Cir.1984). Accordingly, we must reverse the district court on this issue and remand to that court with instructions to remand to the bankruptcy court for additional findings of fact and conclusions" }, { "docid": "21608466", "title": "", "text": "debtor’s insolvency was not improper, its findings as to the value of debtor’s assets and liabilities were clearly erroneous. The district court substantially modified the bankruptcy court’s evaluations of debt- or’s assets and liabilities by (1) further decreasing the bankruptcy court’s valuation of Coldwell Banker/Resort Realty by $147,119.00; and (2) increasing debtor’s liabilities by adding claim # 34 ($159,990.00), and additional debts of $349,682.00 as indicated by debtors Joint Exhibit 1. Accordingly, the district court concluded debtor was insolvent on the date of the transfers by $594,175.00. The court also rejected McAdams and Mt. Prospect’s argument that the transfers were valid because they did not involve debtor’s assets, but assets of the Mun-crief/McAdams partnership. Finally, the court determined that because debtor pledged the $680,000.00 promissory note from Rivermark Partnership as collateral for the $590,000.00 loan from American Bank, the loan was covered by the “security interest” exception to the earmarking doctrine. On appeal to this court, McAdams and Mt. Pleasant argue that the trustee failed to carry the burden of proving that (1) debtor was insolvent; (2) McAdams and Mt. Pleasant received more than they would have received under a Chapter 7 liquidation proceeding; and (3) property transferred was property of the debtor’s estate. They also argue that the district court erred in concluding that the earmarking doctrine did not apply. In reviewing a bankruptcy court’s judgment, ordinarily a district court acts as an appellate court; reviewing the bankruptcy court’s legal conclusions de novo, and its findings of fact under the clearly erroneous standard. See Jennen v. Hunter (In re Hunter), 771 F.2d 1126, 1129 n. 3 (8th Cir.1985). The district court may not make its own independent factual findings. If the bankruptcy court’s factual findings are silent or ambiguous as to an outcome-determinative factual question, the district court may not engage in its own factfinding but must remand the case to the bankruptcy court for the necessary factual determination. Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987). Similarly, in most cases this court may not make an independent factual finding when the bankruptcy court’s decision is silent or" } ]

[ { "docid": "18406529", "title": "", "text": "as to why this formula is unreasonable, other than some vague notion that it would be unfair to do so. Again, Defendants fail to meet their burden of showing that this calculation is unreasonable. Unless Defendants can proffer another persuasive argument, Radisson would be entitled to liquidated damages in the sum of $668,181.91. 3. Causation Defendants argue that, under California law, the failure to pay past due royalties cannot be the “proximate cause” of Radis-son’s lost future royalties. In Postal Instant Press, Inc. v. Sealy, 43 Cal.App.4th 1704, 51 Cal.Rptr.2d 365 (1996), a California appellate court examined a somewhat similar case in which a franchisor terminated its contract with a franchisee as a result of the latter’s failure to make its monthly royalty payments. Id. at 1707, 51 Cal.Rptr.2d 365. The trial court had de termined that the franchisor was entitled to “estimated future royalties” for the remaining eight years on the contract. Id. at 1709, 51 Cal.Rptr.2d 365. On appeal, the court began by writing that “[u]nder contract principles, the non-breaching party is entitled to recover only those damages, including lost future profits, which are ‘proximately caused’ by the specific breach.” Id. The court concluded that lost future profits are not the proximate cause of the franchisee’s failure to pay past royalties, where the franchisor chose to terminate the agreement: [T]he franchisee’s failure to timely make these past royalty payments is not a “natural and direct” cause of the franchisor’s failure to receive future royalty payments. Indeed the franchisor could have remained entitled to those future royalties for the full term of the franchise contract even if it sued to collect the past payments. Nothing in the franchisee’s failure to pay past royalties in any sense prevented the franchisor from earning and receiving its future royalty payments. No, it was the franchisor’s own decision to terminate the franchise agreement that deprived it of its entitlement to those future royalty payments. At worst, if the franchisor had not terminated the franchise agreement it might have been required to sue again or perhaps again and again to compel the franchisee to" } ]

[ { "docid": "18406534", "title": "", "text": "the view that Sealy’s default rule does not apply when the parties have mutually agreed to a different assignment of risk via an indemnifieation/liquidated damages clause. Thus, the parties have made a valid contractual agreement that renders Sealy’s rule inapplicable to the facts of this case. I. Mitigation Defendants have not shown that Radisson’s mitigation efforts are relevant to the liquidated damages analysis. In fact, one of the very purposes of liquidated damages is to allow “[t]he parties [to] avoid the cost, difficulty, and delay of proving damages.” B.E. Witkin, Summary of California Law, § 533 (10th ed.2005) (internal citation omitted). Requiring Radis-son to prove its mitigation efforts would wholly undermine the rationale for employing liquidated damages provisions in the first place. 5. Conclusion On the whole, Defendants have failed to meet their burden in proving that the contractually prescribed formula is an unreasonable method for calculating this lost revenue. Sealy is also as distinguishable from the instant case as it is unpersuasive. Radisson should therefore be awarded liquidated damages in the sum of $668,181.91. D. The Guaranty Radisson argues that the Lee Trust and Lee (the individual defendant) should be held jointly and severally liable with Majestic for $338,522.64 in past due fees and $668,181.91 in liquidated damages. On October 26, 2005, The Lee Trust agreed to be a guarantor of the License Agreement entered into between Radisson and the Majestic. (Lee Deel. Ex. B.) The document is signed by Lee, but the only listed “Guarantor” in the document is the Lee Trust. (Id.) The Lee Trust concedes that it is a guarantor, and consequently liable for Majestic’s breach of the License Agreement. In contrast, Lee argues that he cannot be held liable individually for signing the document on behalf of the Lee Trust. First, Lee admitted in the pleadings that he did personally guaranty the Majestic’s debts. In the complaint, Radis-son alleged: In October of 2005 the Lee 2003 Family Trust (the “Trust”) and Leo Y. Lee (“Lee”) entered into a Guaranty of License Agreement (the “Guaranty”) and guaranteed to Radisson that they would make full and prompt" }, { "docid": "18406541", "title": "", "text": "absent a California supreme Court decision. See Gravquick A/S v. Trimble Navigation Int'l, Ltd.., 323 F.3d 1219, 1222 (9th Cir.2003). The Sealy Court based its proximate cause analysis on a single case involving a licensor-licensee relationship decided by another intermediate California appellate court in 1931. 43 Cal.App.4th at 1712-13, 51 Cal.Rptr.2d 365 (citing Fageol & Tate v. Baird-Bailhache Co., 138 Cal.App. 1, 5 P.2d 75 (1931)). In this Court’s view, the Sealy Court's holding that a franchisor has no remedy but to sue the franchisee over and over again as lost royalties accrue is simply untenable. Though controlled by a specific statutory provision, California law allows \"landlords to terminate the tenancy and sue the tenant for damages measured by the likely amount of lost future rent.” City of San Diego v. Rider, 47 Cal.App.4th 1473, 1502 n. 5, 55 Cal.Rptr.2d 422 (1996). Similarly, the Court believes that where a franchisee breaches a contract and demonstrates that it is unable or unwilling to meet its obligations, lost future profits are a proximate result of the breach because the franchisee’s actions are a \"substantial factor in bringing about that loss or damage.” US Ecology, Inc. v. State, 129 Cal.App.4th 887, 909-10, 28 Cal.Rptr.3d 894 (2005). Thus, this Court does not find Sealy to be persuasive. . Defendants cite to Howard Johnson Int’l, Inc. v. HBS Family, Inc., 1998 WL 411334, at *4 (S.D.N.Y. July 22, 1998), but the reference to mitigation in the case only pertains to \"actual damages,” not liquidated damages. . Where a negotiable instrument is signed for by a trustee, it is possible to evade personal liability by using words such as “as trustee.” See Charles Nelson Co. v. Morton, 106 Cal.App. 144, 160-61, 288 P. 845. First, the guaranty does not constitute a \"negotiable instrument” since it does not include \"an unconditional promise or order to pay a fixed amount of money.” Cal. Comm.Code § 3104. Second, as stated before, Lee failed to provide any indication in the guaranty that he was signing the document solely in his capacity as trustee." }, { "docid": "18406531", "title": "", "text": "pay those future royalties in a timely fashion as those royalties accrued. Id. at 1710-11, 51 Cal.Rptr.2d 365. Furthermore, the court explained: We conclude the Sealys’ [the franchisee’s] breach in failing to timely pay past royalties and advertising fees was not a “proximate” or “natural and direct” cause of PIP’s [the franchisor] loss of future royalties and advertising fees. Failing to make those payments did not prevent PIP from receiving royalties on future revenues the Sealys’ produced under the franchise agreement. It was only when PIP elected to terminate that agreement that it ended the Sealys’ ability to produce revenues as a PIP franchisee and also ended its own right to collect royalties on those revenues. Accordingly, these future profits are not a form of damages to which PIP is entitled for this particular breach of the franchise agreement. At the same time, we wish to make it clear we are not holding franchisors can never collect lost future royalties for franchisees’ breaches of the franchise agreement. That entitlement depends on the nature of the breach and whether the breach itself prevents the franchisor from earning those future royalties. Id. at 1713, 51 Cal.Rptr.2d 365 (emphasis added). Sealy is the only California decision on point, but its rule has been recognized by some other courts. See United Consumers Club, Inc. v. Bledsoe, 441 F.Supp.2d 967, 987 (N.D.Ind.2006); Kissinger, Inc. v. Singh, 304 F.Supp.2d 944, 949-50 (W.D.Mich.2003); Burger King Corporation v. Hinton, Inc., 203 F.Supp.2d 1357, 1366 (S.D.Fla.2002); I Can’t Believe It’s Yogurt v. Gunn, 1997 WL 599391, at *23-24 (D.Colo. Apr.15, 1997). Yet, Sealy is distinguishable from the facts of the current case. In Sealy, the franchise agreement only vaguely stated that the franchisor would be entitled to the “benefit of the bargain” in the event of the franchisee’s material breach. Given this contractual context, Sealy held that lost future royalties were not proximately caused by the franchisee’s failure to pay past royalties. Thus, under the default contract principles governing the claim, these lost future royalties were not part of the “bargain.” In the instant case, Radis-son and Majestic included" }, { "docid": "18406540", "title": "", "text": "of the two alternatives provided by Article 17.4. (Id. Ex. l.) . Majestic admits that it received all of Radis-son’s correspondence. (Def. State. Gen. Issues ¶ 26.) . In any event, it is only necessary to prove that the actual damages \"would be impracticable or difficult to fix” if the case is governed by Cal. Civ.Code § 1671(d). Section 1671(b) contains no such similar requirement. . The Court does not agree with the Defendants’ argument, nonetheless, that one must be an expert economist or expert in franchise business models to comment on Radisson's past experiences in finding a replacement franchisee. . Since they bear the burden on this point, Defendants should have obtained discovery from Radisson that explains how long it typically takes to find a replacement franchisee. It was not Radisson's burden to offer such evidence itself. . The predecessor franchisee operated the same hotel — the Radisson Plaza Wilshire Hotel. . Alternatively, this Court believes that the Sealy decision is mistaken. A trial court is not required to accept an intermediate court's opinion absent a California supreme Court decision. See Gravquick A/S v. Trimble Navigation Int'l, Ltd.., 323 F.3d 1219, 1222 (9th Cir.2003). The Sealy Court based its proximate cause analysis on a single case involving a licensor-licensee relationship decided by another intermediate California appellate court in 1931. 43 Cal.App.4th at 1712-13, 51 Cal.Rptr.2d 365 (citing Fageol & Tate v. Baird-Bailhache Co., 138 Cal.App. 1, 5 P.2d 75 (1931)). In this Court’s view, the Sealy Court's holding that a franchisor has no remedy but to sue the franchisee over and over again as lost royalties accrue is simply untenable. Though controlled by a specific statutory provision, California law allows \"landlords to terminate the tenancy and sue the tenant for damages measured by the likely amount of lost future rent.” City of San Diego v. Rider, 47 Cal.App.4th 1473, 1502 n. 5, 55 Cal.Rptr.2d 422 (1996). Similarly, the Court believes that where a franchisee breaches a contract and demonstrates that it is unable or unwilling to meet its obligations, lost future profits are a proximate result of the breach" }, { "docid": "23496278", "title": "", "text": "Rano v. Sipa Press, Inc., 987 F.2d 580, 586 (9th Cir. 1993), but if the breach is a partial breach, the non-breaching party's remedy is for damages. See Postal Instant Press, Inc. v. Sealy, 43 Cal.App.4th 1704, 1708-09, 51 Cal.Rptr.2d 365 (1996). . \" 'Termination occurs when either party pursuant to a power created by agreement or law puts an end to the contract otherwise than for its breach.’ ” See Witkin, Summary of California Law § 925 (internal quotation marks omitted). . Because Improv West revoked CCI's rights to the Improv marks for almost the entire contiguous United States, the Improv West-CCI licensing relationship has ended except as to the existing Improv clubs. Bearing this in mind, it might be possible to view § 9.j., with respect to the majority of the United States, functionally as if it were a post-term covenant not to compete, and with respect to the Improv clubs that CCI continues to operate, as an in-term covenant not to compete. However, because the contract relationship has not been canceled, and continues for the existing Improv clubs operated by CCI, we think it more appropriate conceptually to analyze § 9.j. nationwide as an in-term covenant not to compete, while considering CCI’s limited continuing use of the Improv marks as pertinent to the scope of § 9.j. . Similar to Dayton Time Lock, the District Court for the Northern District of Illinois in Great Frame Up Systems, Inc. v. Jazayeri Enterprises, 789 F.Supp. 253 (N.D.Ill.1992), stated, while interpreting California law on CBPC § 16600, that California courts support the position “that preventing defendants from competing only during the term of [an] existing franchise agreement, would not be void.” Id. at 255. The court reasoned, however, that the in-term contractual provisions still cannot prevent a party from engaging in an entire profession, business or trade. See id. at 256. Finally, in General Commercial Packaging, Inc. v. TPS Package Engineering, Inc., 126 F.3d 1131 (9th Cir. 1997) (per curiam), we addressed a covenant not to compete in a general contractor-subcontractor context. General Commercial Packaging (“GCP”), a packing and crating" }, { "docid": "18406520", "title": "", "text": "(7th Cir.1974) (undisputed affidavits may establish damages for purposes of plaintiffs summary judgment motion); Villager Franchise Sys., Inc. v. Dhami, Dhami & Virk, 2006 WL 224425, at *10 (E.D.Cal. Jan.26, 2006) (same). Radisson is entitled to $338,522.64 on past due fees that the Majestic failed to pay. C. Liquidated Damages Prior to 1977, liquidated damages provisions were on the whole disfavored. See B.E. Witkin, Summary of California Law, § 503 (10th ed.2005). However, a commission was formed on the matter and it was determined by that group that “liquidated damage provisions are useful and should be encouraged.” Id. § 533 (citing 13 Cal. Law Rev. Com. Reports 1740,1741). The modern form of California’s liquidated damages statute has switched the presumption from invalidity to validity. With the exception of two types of contracts not applicable to this case, “a provision in a contract liquidating the damages for the breach of the contract is valid unless the party seeking to invalidate the provision establishes that the provision was unreasonable under the circumstances existing at the time the contract was made.” Cal. Civ.Code § 1671(b). Thus, the burden of proving that the clause is unreasonable at the time the contract was made is placed on the Defendants. See Weber, Lipshie & Co. v. Christian, 52 Cal.App.4th 645, 654, 60 Cal.Rptr.2d 677 (1997); see also Atel Fin. Corp. v. Quaker Coal Co., 132 F.Supp.2d 1233, 1244 (N.D.Cal.2001) (“[Defendant has met its burden of proving that the liquidated damages provision ... was unreasonable under the circumstances existing at the time the contract was made.”); Travelodge Hotels, Inc. v. Kim Shin Hospitality, Inc., 27 F.Supp.2d 1377, 1383 (M.D.Fla.1998) (holding that under California law “there is a presumption of validity and the burden is on the party seeking invalidation to establish that the provision is unreasonable”). This standard permits a considerable degree of latitude in fixing the sum of liquidated damages, as explained by one California appellate court: Given the current statutory policy which favors the validity of such agreements except in certain consumer transactions, and which casts the burden on the opposing party to prove unreasonableness" }, { "docid": "14421100", "title": "", "text": "of the Employment Agreement during the AIG era also entitle him to liquidated damages. The AIG era breaches must be considered separately from the Posner era breaches because Bigda’s election to continue his contract following the Posner era breaches would not necessarily prevent a subsequent termination if new breaches arose during the AIG era. See Apex, 419 F.2d at 562. However, with respect to these breaches, material issues of fact exist about whether the actions of AIG employees deprived Bigda of responsibilities or were a convenient pretext used to justify Bigda’s otherwise calculated termination of the Employment Agreement. Further, even if Fischbach did breach Bigda’s contract, the court is unwilling to find, at least at this stage of the proceedings, that Bigda elected to continue performance with respect to these breaches. Defendant has not yet established that plaintiff chose to continue performance, and the limited time that elapsed between August and October, 1990, is too short a period of time to find, absent further proof, that an election was implied. B. Alternatively, Fischbach argues that the Damages Provision is not a liquidated damages clause, but an unenforceable penalty. Liquidated damages may be established in advance where the amount established “bears a reasonable proportion to the probable loss,” and actual damages are difficult to ascertain as of the time the parties enter into the contract. Truck Rent-A-Center, Inc. v. Puritan Farms 2nd, Inc., 41 N.Y.2d 420, 425, 393 N.Y.S.2d 365, 369, 361 N.E.2d 1015, 1019 (1977). A clause which provides for an amount “plainly disproportionate” to actual damages is deemed a penalty and is not enforceable because it compels performance by the “very disproportion” between liquidated and actual damages. Id. Both the reasonableness of the liquidated damages and the certainty of actual damages must be measured as of the time of the contract’s execution rather than at the time of the loss actually incurred. Vernitron Corp. v. CF 48 Associates, 104 A.D.2d 409, 409, 478 N.Y.S.2d 933, 934 (2d Dept.1984). The enforceability of a liquidated damages provision is a matter of law. See Leasing Service Corp. v. Justice, 673 F.2d 70," }, { "docid": "18406523", "title": "", "text": "to the termination (whether paid by Majestic or the predecessor licensee who previously operated at the same location). The liquidated damages, according to Radisson, are two times that amount — $668,181.91. Rad-isson argues that this amount is designed to estimate the revenue/future royalties that will be lost by Radisson while it searches for a replacement franchisee (which on average would take two years to accomplish). Majestic and Radisson negotiated the terms of the contract, and Radisson accepted the specific changes to the language of Article 17.4 as proposed by Majestic. (Payne Supp. Decl. Exs. A, B.) The parties explicitly agreed through these negotiations that: “[i]f Radisson terminates this Agreement for Licensee’s fault, the actual damages that Radisson would suffer for the loss of prospective fees and other amounts payable to Radisson under Article 5 would be difficult if not impossible to ascertain.” (Blazina Decl. Ex. A at 16.) The Court agrees with the assessment that it would likely be difficult to calculate future lost royalties in this case at the time the contract was made. As discussed by one court interpreting California’s law of liquidated damages: The resulting harm from the premature termination would be lost future profits. Factors that can affect future profitability include “the future business ability of the franchisee, changes in the formation of highways and occurrence of traffic, gas and oil shortages, and the general ability of the public at large to use the facilities.” See Ramada Franchise Sys., Inc. v. Motor Inn Inv. Corp., 755 F.Supp. 1570, 1578 (S.D.Ga.1991) (discussing the difficulty of determining damages caused by breach of a hotel franchise agreement). Thus, it would be very difficult to estimate future profits at the time of the contract. Given the inability to compute the actual damages that would flow from the breach, the formula in the License Agreement provides a reasonable estimate. Kim Shin Hospitality, Inc., 27 F.Supp.2d at 1383. The Court now examines each of Defendants’ specific challenges to the liquidated damages clause. 1. The Two Year Estimate The Court agrees with the Defendants that Radisson has not produced any admissible proof that" }, { "docid": "18406530", "title": "", "text": "to recover only those damages, including lost future profits, which are ‘proximately caused’ by the specific breach.” Id. The court concluded that lost future profits are not the proximate cause of the franchisee’s failure to pay past royalties, where the franchisor chose to terminate the agreement: [T]he franchisee’s failure to timely make these past royalty payments is not a “natural and direct” cause of the franchisor’s failure to receive future royalty payments. Indeed the franchisor could have remained entitled to those future royalties for the full term of the franchise contract even if it sued to collect the past payments. Nothing in the franchisee’s failure to pay past royalties in any sense prevented the franchisor from earning and receiving its future royalty payments. No, it was the franchisor’s own decision to terminate the franchise agreement that deprived it of its entitlement to those future royalty payments. At worst, if the franchisor had not terminated the franchise agreement it might have been required to sue again or perhaps again and again to compel the franchisee to pay those future royalties in a timely fashion as those royalties accrued. Id. at 1710-11, 51 Cal.Rptr.2d 365. Furthermore, the court explained: We conclude the Sealys’ [the franchisee’s] breach in failing to timely pay past royalties and advertising fees was not a “proximate” or “natural and direct” cause of PIP’s [the franchisor] loss of future royalties and advertising fees. Failing to make those payments did not prevent PIP from receiving royalties on future revenues the Sealys’ produced under the franchise agreement. It was only when PIP elected to terminate that agreement that it ended the Sealys’ ability to produce revenues as a PIP franchisee and also ended its own right to collect royalties on those revenues. Accordingly, these future profits are not a form of damages to which PIP is entitled for this particular breach of the franchise agreement. At the same time, we wish to make it clear we are not holding franchisors can never collect lost future royalties for franchisees’ breaches of the franchise agreement. That entitlement depends on the nature of the" }, { "docid": "18406533", "title": "", "text": "a specific contractual provision making Majestic liable for Radisson’s lost future profits resulting from Radisson’s decision to terminate is motivated by Majestic’s mere failure to pay overdue royalties. Functionally, this provision requires Majestic to indemnify Radisson’s lost profits in the event that the License Agreement is terminated due to Majestic’s failure to pay past royalty fees. Majestic accepted this indemnification responsibility in consideration of the right to become a Radisson franchisee. To this Court’s knowledge, there is no rule that prevents a party from indemnifying (or insuring) losses that might otherwise not be recoverable under a contract law theory. Not surprisingly, two other courts have upheld relatively similar liquidated damages provisions under the auspices of California law. See Kim Shin Hospitality, Inc., 27 F.Supp.2d at 1382-83; Villager, 2006 WL 224425, at *10. These other courts (as in this case) examined contracts that required the franchisee to compensate the franchisor’s lost future profits (including when the agreement was terminated by the franchisor due to the franchisee’s failure to pay past due royalties). These cases further support the view that Sealy’s default rule does not apply when the parties have mutually agreed to a different assignment of risk via an indemnifieation/liquidated damages clause. Thus, the parties have made a valid contractual agreement that renders Sealy’s rule inapplicable to the facts of this case. I. Mitigation Defendants have not shown that Radisson’s mitigation efforts are relevant to the liquidated damages analysis. In fact, one of the very purposes of liquidated damages is to allow “[t]he parties [to] avoid the cost, difficulty, and delay of proving damages.” B.E. Witkin, Summary of California Law, § 533 (10th ed.2005) (internal citation omitted). Requiring Radis-son to prove its mitigation efforts would wholly undermine the rationale for employing liquidated damages provisions in the first place. 5. Conclusion On the whole, Defendants have failed to meet their burden in proving that the contractually prescribed formula is an unreasonable method for calculating this lost revenue. Sealy is also as distinguishable from the instant case as it is unpersuasive. Radisson should therefore be awarded liquidated damages in the sum of $668,181.91." }, { "docid": "18406532", "title": "", "text": "breach and whether the breach itself prevents the franchisor from earning those future royalties. Id. at 1713, 51 Cal.Rptr.2d 365 (emphasis added). Sealy is the only California decision on point, but its rule has been recognized by some other courts. See United Consumers Club, Inc. v. Bledsoe, 441 F.Supp.2d 967, 987 (N.D.Ind.2006); Kissinger, Inc. v. Singh, 304 F.Supp.2d 944, 949-50 (W.D.Mich.2003); Burger King Corporation v. Hinton, Inc., 203 F.Supp.2d 1357, 1366 (S.D.Fla.2002); I Can’t Believe It’s Yogurt v. Gunn, 1997 WL 599391, at *23-24 (D.Colo. Apr.15, 1997). Yet, Sealy is distinguishable from the facts of the current case. In Sealy, the franchise agreement only vaguely stated that the franchisor would be entitled to the “benefit of the bargain” in the event of the franchisee’s material breach. Given this contractual context, Sealy held that lost future royalties were not proximately caused by the franchisee’s failure to pay past royalties. Thus, under the default contract principles governing the claim, these lost future royalties were not part of the “bargain.” In the instant case, Radis-son and Majestic included a specific contractual provision making Majestic liable for Radisson’s lost future profits resulting from Radisson’s decision to terminate is motivated by Majestic’s mere failure to pay overdue royalties. Functionally, this provision requires Majestic to indemnify Radisson’s lost profits in the event that the License Agreement is terminated due to Majestic’s failure to pay past royalty fees. Majestic accepted this indemnification responsibility in consideration of the right to become a Radisson franchisee. To this Court’s knowledge, there is no rule that prevents a party from indemnifying (or insuring) losses that might otherwise not be recoverable under a contract law theory. Not surprisingly, two other courts have upheld relatively similar liquidated damages provisions under the auspices of California law. See Kim Shin Hospitality, Inc., 27 F.Supp.2d at 1382-83; Villager, 2006 WL 224425, at *10. These other courts (as in this case) examined contracts that required the franchisee to compensate the franchisor’s lost future profits (including when the agreement was terminated by the franchisor due to the franchisee’s failure to pay past due royalties). These cases further support" }, { "docid": "14421101", "title": "", "text": "the Damages Provision is not a liquidated damages clause, but an unenforceable penalty. Liquidated damages may be established in advance where the amount established “bears a reasonable proportion to the probable loss,” and actual damages are difficult to ascertain as of the time the parties enter into the contract. Truck Rent-A-Center, Inc. v. Puritan Farms 2nd, Inc., 41 N.Y.2d 420, 425, 393 N.Y.S.2d 365, 369, 361 N.E.2d 1015, 1019 (1977). A clause which provides for an amount “plainly disproportionate” to actual damages is deemed a penalty and is not enforceable because it compels performance by the “very disproportion” between liquidated and actual damages. Id. Both the reasonableness of the liquidated damages and the certainty of actual damages must be measured as of the time of the contract’s execution rather than at the time of the loss actually incurred. Vernitron Corp. v. CF 48 Associates, 104 A.D.2d 409, 409, 478 N.Y.S.2d 933, 934 (2d Dept.1984). The enforceability of a liquidated damages provision is a matter of law. See Leasing Service Corp. v. Justice, 673 F.2d 70, 74 (2d Cir.1982). However, due consideration must also be given to the nature of the contract and the attendant circumstances. See J.R. Stevenson Corp. v. County of Westchester, 113 A.D.2d 918, 920-21, 493 N.Y.S.2d 819, 823 (2d Dept.1985); Interpetrol Bermuda Ltd. v. Stinnes Interoil, Inc., No. 88 Civ. 8620, 1990 WL 250169, at *4-5, 1990 U.S. Dist. LEXIS 17376, at *13 (S.D.N.Y. December 26, 1990) (Leisure, J.). Further, the New York Court of Appeals has cautioned against interfering with the agreement of the parties, absent some persuasive justification. Cf. Fifty States Management Corp. v. Pioneer Auto Parks, Inc., 46 N.Y.2d 573, 577, 415 N.Y.S.2d 800, 803, 389 N.E.2d 113 (1979) (“Absent some element of fraud, exploitive overreaching or unconscionable conduct on the part of the landlord to exploit a technical breach,” court should enforce agreement of the parties). Relevant here is whether the parties were sophisticated and represented by counsel, the contract was negotiated at arms-length between parties of equal bargaining power, and similar damages provisions were incorporated into other employment contracts. See Rattigan v." }, { "docid": "23129160", "title": "", "text": "or the disputed clause was presented and negotiated: Procedural unconscionability focuses on the manner in which the disputed clause is presented to the party in the weaker bargaining position. When the weaker party is presented the clause and told to “take it or leave it” without the opportunity for meaningful negotiation, oppression, and therefore procedural unconscionability, are present. Szetela v. Discover Bank, 97 Cal.App.4th 1094, 1100, 118 Cal.Rptr.2d 862 (2002); see also Martinez v. Master Prot. Corp., 118 Cal.App.4th 107, 114, 12 Cal.Rptr.3d 663 (2004) (“An arbitration agreement that is an essential part of a ‘take it or leave it’ employment condition, without more, is procedurally unconscionable.”); Mercuro, 96 Cal.App.4th at 174, 116 Cal.Rptr.2d 671 (“Procedural unconscionability turns on adhesiveness — a set of circumstances in which the weaker or ‘adhering’ party is presented a contract drafted by the stronger party on a take it or leave it basis.”). California courts have long recognized that franchise agreements have some characteristics of contracts of adhesion because of the “vastly superior bargaining strength” of the franchisor. See Keating v. Superior Court, 31 Cal.3d 584, 593, 183 Cal.Rptr. 360, 645 P.2d 1192 (1982), overruled on other grounds by Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984). As the California Court of Appeal stated in Postal Instant Press, Inc. v. Sealy, 43 Cal.App.4th 1704, 1715-16, 51 Cal.Rptr.2d 365 (1996): Although franchise agreements are commercial contracts they exhibit many of the attributes of consumer contracts. The relationship between franchisor and franchisee is characterized by a prevailing, although not universal, inequality of economic resources between the contracting parties. Franchisees typically, but not always, are small businessmen or businesswomen or people like the Sealys seeking to make the transition from being wage earners and for whom the franchise is their very first business. Franchisors typically, but not always, are large corporations. The agreements themselves tend to reflect this gross bargaining disparity. Usually they are form contracts the franchisor prepared and offered to franchisees on a take-[it-] or leave-it basis. ... Franchising involves the unequal bargaining power of franchisors and franchisees and" }, { "docid": "14336386", "title": "", "text": "Court notes that under the franchise agreement, Shoney’s has no obligation to relinquish its right to future royalties. The franchise agreements state that future royalties will be due for the remaining term of the license if a restaurant is closed early. As noted by the plaintiff, the termination agreement simply “represents a modification of the License Agreement.” Plaintiffs memorandum (Docket Entry No. 165) at 7. Accordingly, the Court rejects Mr. Morris’ argument that the future royalties clauses at issue are unenforceable as against public policy. Second, Mr. Morris argues that “the arrangement employed by Shoney’s, particularly where the practice of using the termination agreements and mutual releases in this fashion is not disclosed to the franchisees in either the franchise agreements or the offering circulars, is also unconscionable and unenforceable.” Defendant’s brief (Docket Entry No. 122) at 10. The defendant cites no Tennessee cases on point in support of his argument. He does cite the case of Postal Instant Press, Inc. v. Sealy, 43 Cal.App.4th 1704, 51 Cal.Rptr.2d 365 (1996), in which the California Court of Appeals held that the franchisor was not entitled to future royalties where the franchisor, and not the franchisee, elected to terminate the contract instead of merely suing for past unpaid royalties and continuing to maintain the franchise. The court specifically noted that it would not “consider whether a franchisor would be entitled to ‘lost future profits’ damages if the franchisee rather than the franchisor unilaterally canceled the franchise agreement.” Id. at 369 n. 2. The court further refused to adopt the franchisee’s argument that “it is unfair and uneconomic to force franchisees to remain linked to a sinking franchisor by requiring them to continue paying royalty fees if they elect to terminate the franchise agreement.” Id. at 375 n. 10. Accordingly, the Court rejects the defendant’s argument that the future royalties clauses are unconscionable. Finally, Mr. Morris argues that “the combination of the future royalties clauses and the termination agreements with the mutual releases are void and unenforceable because the provisions in the standard franchise contract drafted by Shoney’s (the franchise contracts are non-negotiable)" }, { "docid": "23129161", "title": "", "text": "Keating v. Superior Court, 31 Cal.3d 584, 593, 183 Cal.Rptr. 360, 645 P.2d 1192 (1982), overruled on other grounds by Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984). As the California Court of Appeal stated in Postal Instant Press, Inc. v. Sealy, 43 Cal.App.4th 1704, 1715-16, 51 Cal.Rptr.2d 365 (1996): Although franchise agreements are commercial contracts they exhibit many of the attributes of consumer contracts. The relationship between franchisor and franchisee is characterized by a prevailing, although not universal, inequality of economic resources between the contracting parties. Franchisees typically, but not always, are small businessmen or businesswomen or people like the Sealys seeking to make the transition from being wage earners and for whom the franchise is their very first business. Franchisors typically, but not always, are large corporations. The agreements themselves tend to reflect this gross bargaining disparity. Usually they are form contracts the franchisor prepared and offered to franchisees on a take-[it-] or leave-it basis. ... Franchising involves the unequal bargaining power of franchisors and franchisees and therefore carries within itself the seeds of abuse. Before the relationship is established, abuse is threatened by the franchisor’s use of contracts of adhesion presented on a take-it-or-leave-it basis. Internal quotation marks and citations omitted. Here, Nagrampa was in a substantially weaker bargaining position than Mail-Coups. As reported in the franchise offering circular attached to Nagrampa’s complaint, Advo, MailCoups’s parent company, is a large corporation which in 1997 had $208,553,000 in assets and $1,016,492,000 in revenues. Nagrampa, on the other hand, had a yearly salary of approximately $100,000 and had never owned her own business. As the district court noted, Ma-ilCoups conceded that it presented the contract on a take-it-or-leave-it basis. Na-grampa’s complaint specifically alleges that she attempted to negotiate the “line-charges” cost calculation to be “lump-sum,” but was rebuffed by MailCoups, who responded only that the base rate “line-charges” would be reduced by “credits.” The California Court of Appeal has rejected the notion that the' availability in the marketplace of substitute employment, goods, or services alone can defeat a claim of procedural unconscionability. See," }, { "docid": "18406522", "title": "", "text": "and requires only that the liquidated damages bear a reasonable relationship to the range of harm that might reasonably be anticipated. Weber, 52 Cal.App.4th at 656, 60 Cal.Rptr.2d 677. The clause becomes an unenforceable penalty only “if it bears no reasonable relationship to the range of actual damages that the parties could have anticipated would flow from the breach.” See Ridgley v. Topa Thrift and Loan Ass’n, 17 Cal.4th 970, 977, 73 Cal.Rptr.2d 378, 953 P.2d 484 (1998). “The question whether a contractual provision is an unenforceable liquidated damages provision is one for the court.” Morris v. Redwood Empire Bancorp, 128 Cal.App.4th 1305, 1314, 27 Cal.Rptr.3d 797 (2005). The liquidated damages clause in this case can be found in Article 17.4 of the License Agreement. Two alternatives are presented, but the parties do not dispute the proper option that should be invoked (putting aside the issue of whether it is a penalty for a moment). Radisson has provided uncontradicted evidence that it received $334,090.96 in royalty fees under Article 5.2 for the year leading up to the termination (whether paid by Majestic or the predecessor licensee who previously operated at the same location). The liquidated damages, according to Radisson, are two times that amount — $668,181.91. Rad-isson argues that this amount is designed to estimate the revenue/future royalties that will be lost by Radisson while it searches for a replacement franchisee (which on average would take two years to accomplish). Majestic and Radisson negotiated the terms of the contract, and Radisson accepted the specific changes to the language of Article 17.4 as proposed by Majestic. (Payne Supp. Decl. Exs. A, B.) The parties explicitly agreed through these negotiations that: “[i]f Radisson terminates this Agreement for Licensee’s fault, the actual damages that Radisson would suffer for the loss of prospective fees and other amounts payable to Radisson under Article 5 would be difficult if not impossible to ascertain.” (Blazina Decl. Ex. A at 16.) The Court agrees with the assessment that it would likely be difficult to calculate future lost royalties in this case at the time the contract was made." }, { "docid": "23496277", "title": "", "text": "of descent, such as a cousin.” Black's Law Dictionary 1315 (8th ed.2004). . CCI raises this issue for the first time on appeal. Although we generally do \"not consider an issue raised for the first time on appeal,” we recognize three exceptions to that rule, by which we may invoke our discretion and review the issue: (1) where \"review is necessary to prevent a miscarriage of justice or to preserve the integrity of the judicial process”; (2) where there is a change in the law creating a new issue; or (3) \"when the issue presented is purely one of law and either does not depend on the factual record developed below, or the pertinent record has been fully developed.” Cold Mountain v. Gar-ber, 375 F.3d 884, 891 (9th Cir.2004) (internal quotation marks and citation omitted). Here, we exercise our discretion and review CCI's argument under exceptions one and three. . The general rule is that if the breach is a material breach, it may give grounds for the non-breaching party to cancel the contract, see Rano v. Sipa Press, Inc., 987 F.2d 580, 586 (9th Cir. 1993), but if the breach is a partial breach, the non-breaching party's remedy is for damages. See Postal Instant Press, Inc. v. Sealy, 43 Cal.App.4th 1704, 1708-09, 51 Cal.Rptr.2d 365 (1996). . \" 'Termination occurs when either party pursuant to a power created by agreement or law puts an end to the contract otherwise than for its breach.’ ” See Witkin, Summary of California Law § 925 (internal quotation marks omitted). . Because Improv West revoked CCI's rights to the Improv marks for almost the entire contiguous United States, the Improv West-CCI licensing relationship has ended except as to the existing Improv clubs. Bearing this in mind, it might be possible to view § 9.j., with respect to the majority of the United States, functionally as if it were a post-term covenant not to compete, and with respect to the Improv clubs that CCI continues to operate, as an in-term covenant not to compete. However, because the contract relationship has not been canceled, and" }, { "docid": "18406519", "title": "", "text": "477 U.S. at 248, 106 S.Ct. 2505; see also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir.2001)(holding the nonmoving party must provide specific evidence from which a reasonable jury could return a verdict in its favor). B. Past Due Fees In terms of Radisson’s first cause of action, it is uncontested that the Majestic owes $338,522.64 in past due fees based on the License Agreement’s terms found at Article 5.2, 5.3, and 5.4, and has not paid that sum to date. This quantum of damages is established by Radisson’s declarations and attached business records, which have not been objected to by the Defendants as either substantively inaccurate or inadmissible on evidentiary grounds. Since the Defendants have failed to argue that they had the right to withhold the $338,522.64 under the License Agreement, and because they have not contradicted Radisson’s declarations and other evidence establishing the money owed, Radisson should be granted summary adjudication on its first cause of action. See Garcy Corp. v. Home Ins. Co., 496 F.2d 479, 484 (7th Cir.1974) (undisputed affidavits may establish damages for purposes of plaintiffs summary judgment motion); Villager Franchise Sys., Inc. v. Dhami, Dhami & Virk, 2006 WL 224425, at *10 (E.D.Cal. Jan.26, 2006) (same). Radisson is entitled to $338,522.64 on past due fees that the Majestic failed to pay. C. Liquidated Damages Prior to 1977, liquidated damages provisions were on the whole disfavored. See B.E. Witkin, Summary of California Law, § 503 (10th ed.2005). However, a commission was formed on the matter and it was determined by that group that “liquidated damage provisions are useful and should be encouraged.” Id. § 533 (citing 13 Cal. Law Rev. Com. Reports 1740,1741). The modern form of California’s liquidated damages statute has switched the presumption from invalidity to validity. With the exception of two types of contracts not applicable to this case, “a provision in a contract liquidating the damages for the breach of the contract is valid unless the party seeking to invalidate the provision establishes that the provision was unreasonable under the circumstances existing at the time the" }, { "docid": "18406521", "title": "", "text": "contract was made.” Cal. Civ.Code § 1671(b). Thus, the burden of proving that the clause is unreasonable at the time the contract was made is placed on the Defendants. See Weber, Lipshie & Co. v. Christian, 52 Cal.App.4th 645, 654, 60 Cal.Rptr.2d 677 (1997); see also Atel Fin. Corp. v. Quaker Coal Co., 132 F.Supp.2d 1233, 1244 (N.D.Cal.2001) (“[Defendant has met its burden of proving that the liquidated damages provision ... was unreasonable under the circumstances existing at the time the contract was made.”); Travelodge Hotels, Inc. v. Kim Shin Hospitality, Inc., 27 F.Supp.2d 1377, 1383 (M.D.Fla.1998) (holding that under California law “there is a presumption of validity and the burden is on the party seeking invalidation to establish that the provision is unreasonable”). This standard permits a considerable degree of latitude in fixing the sum of liquidated damages, as explained by one California appellate court: Given the current statutory policy which favors the validity of such agreements except in certain consumer transactions, and which casts the burden on the opposing party to prove unreasonableness and requires only that the liquidated damages bear a reasonable relationship to the range of harm that might reasonably be anticipated. Weber, 52 Cal.App.4th at 656, 60 Cal.Rptr.2d 677. The clause becomes an unenforceable penalty only “if it bears no reasonable relationship to the range of actual damages that the parties could have anticipated would flow from the breach.” See Ridgley v. Topa Thrift and Loan Ass’n, 17 Cal.4th 970, 977, 73 Cal.Rptr.2d 378, 953 P.2d 484 (1998). “The question whether a contractual provision is an unenforceable liquidated damages provision is one for the court.” Morris v. Redwood Empire Bancorp, 128 Cal.App.4th 1305, 1314, 27 Cal.Rptr.3d 797 (2005). The liquidated damages clause in this case can be found in Article 17.4 of the License Agreement. Two alternatives are presented, but the parties do not dispute the proper option that should be invoked (putting aside the issue of whether it is a penalty for a moment). Radisson has provided uncontradicted evidence that it received $334,090.96 in royalty fees under Article 5.2 for the year leading up" }, { "docid": "14336385", "title": "", "text": "full release for causing the franchisees to become unprofitable.” Defendant’s brief (Docket Entry No. 122) at 8. Thus, Mr. Morris argues that the clauses act as a penalty and are “void and unenforceable, as against public policy, under the law of Tennessee.” Id. at 9. Mr. Morris cites three cases in support of his argument, but none of these cases discuss future royalty clauses in license agreements. The plaintiff, however, cites McGann v. United Safari, Inc., 694 S.W.2d 382 (Tenn. Ct.App.1985), in which the Tennessee Court of Appeals enforced the royalties provision in the license agreement. In addition, in Franchise Management Unlimited, Inc. v. America’s Favorite Chicken, 221 Mich.App. 239, 561 N.W.2d 123 (1997), appeal granted, No. 108904 (Mich. Apr. 1, 1998), the court upheld the requirement in the franchise agreement that the franchisee execute a release as a condition to transferring the franchise to another party- Although Mr. Morris argues that Sho-ney’s policy of requiring a release as part of the termination agreement is not disclosed in the franchise agreement or offering circulars, the Court notes that under the franchise agreement, Shoney’s has no obligation to relinquish its right to future royalties. The franchise agreements state that future royalties will be due for the remaining term of the license if a restaurant is closed early. As noted by the plaintiff, the termination agreement simply “represents a modification of the License Agreement.” Plaintiffs memorandum (Docket Entry No. 165) at 7. Accordingly, the Court rejects Mr. Morris’ argument that the future royalties clauses at issue are unenforceable as against public policy. Second, Mr. Morris argues that “the arrangement employed by Shoney’s, particularly where the practice of using the termination agreements and mutual releases in this fashion is not disclosed to the franchisees in either the franchise agreements or the offering circulars, is also unconscionable and unenforceable.” Defendant’s brief (Docket Entry No. 122) at 10. The defendant cites no Tennessee cases on point in support of his argument. He does cite the case of Postal Instant Press, Inc. v. Sealy, 43 Cal.App.4th 1704, 51 Cal.Rptr.2d 365 (1996), in which the California Court" } ]

[ { "docid": "23172793", "title": "", "text": "S.Ct. 2258, 138 L.Ed.2d 772 (1997)). This reluctance is grounded, in part, in the realization that “guideposts for responsible de-cisionmaking in this unchartered area are scarce and open-ended.” Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). It also finds roots in our reluctance to fix the boundaries of due process in a way that intrudes into the state’s proper domain of fashioning principles of private tort law. The Due Process Clause is intended as a “limitation of the State’s power to act, not as a guarantee of certain minimal levels of safety and security.” DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 195, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). Nevertheless, the concept of substantive due process remains an important part of our constitutional jurisprudence and, in its limited domain, plays an important role in the protection of individual liberty. As we noted in Tun, the essence of substantive due process is protection of the individual from the exercise of governmental power without reasonable justification. See Tun, 398 F.3d at 902. In the context of the action of law enforcement authorities, the situation that we face in this case, “[i]t is most often described as an abuse of government power which ‘shocks the conscience.’ ” Id. (quoting Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952)). Despite the dangers inherent in the implementation of a constitutional standard that lacks built-in guidelines, the task is hardly beyond careful judicial implementation. First of all, we must remember that, while the “shocks the conscience” standard seems at first glance to be highly subjective, the Supreme Court has made it quite clear that it is objective in nature. In determining what kind of conduct can be said to shock the judicial conscience, judges invariably start by “asking whether or not the objective character of certain conduct is consistent with our traditions, precedents, and historical understanding of the Constitution and its meaning.” County of Sacramento v. Lewis, 523 U.S. 833, 857, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)" } ]

[ { "docid": "23111870", "title": "", "text": "Unlike the Fourteenth Amendment, “the Fourth Amendment is specifically directed to methods of arrest and seizure of the person.” Bell, 746 F.2d at 1278 n. 87 (7th Cir.1984) (citing Garner v. Memphis Police Dept., 710 F.2d 240, 243 (6th Cir.1983), aff'd sub. nom., Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). Mrs. Lester complains that Leahy and Cain used more force than was necessary to arrest her. Mrs. Lester’s claim is quintessentially a Fourth Amendment claim. She is really complaining that Leahy and Cain violated her “right ... to be secure in [her] person[ ] ... against unreasonable ... seizure[ ].” U.S. Const. Amend. IV. Since the Fourth Amendment is specifically directed to Mrs. Lester’s complaint, no need exists to go beyond the Fourth Amendment to address her claim. The substantive due process “shocks the conscience” standard on which the Gumz criteria are based originated in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). In Rochin, the Supreme Court held that forcing an emetic down a suspect’s throat to induce vomiting to obtain evidence from the suspect violated the suspect’s right to due process of law. Id. at 166, 172-74, 72 S.Ct. at 206, 209-10. The Rochin Court found that the police’s conduct “shock[ed] the conscience” and was “bound to offend even hardened sensibilities.” Id. at 172, 72 S.Ct. at 210. At the time the Court decided Rochin, the Court had not yet held that the Fourth Amendment’s exclusionary rule applied to the states. See Wolf v. Colorado, 338 U.S. 25, 28-33, 69 S.Ct. 1359, 1361-64, 93 L.Ed. 1782 (1949) (holding that exclusionary rule did not apply to the states). See also Comment, Excessive Force Claims: Removing the Double Standard, 53 U.Chi.L.Rev. 1369, 1379 (1986). Thus, the Rochin Court used the “shocks the conscience” standard to exclude the evidence obtained by pumping the suspect’s stomach. Subsequent to Rochin, the Supreme Court reversed itself, and applied the Fourth Amendment exclusionary rule to the states. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Consequently, the Court has" }, { "docid": "16387393", "title": "", "text": "liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” Lopez-Mendoza, 468 U.S. at 1050-51, 104 S.Ct. 3479. In Rochin, three deputy sheriffs forcibly entered a home and saw Rochin swallow some capsules which were believed to be a controlled substance. In order to recover that evidence, Rochin was taken to a hospital where a doctor induced vomiting at the direction of one of the officers by inserting a tube into Rochin’s stomach and pumping a chemical into him. The Supreme Court found that such conduct offended even “hardened sensibilities.” Rochin, 342 U.S. at 172, 72 S.Ct. 205. It “shocked] the conscience” and violated Rochin’s right to due process under the Constitution. Id. Rochin was decided before the Fourth Amendment was applied to the states through incorporation by the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). “Consequently, the Court has not relied on the Rochin ‘shocks the conscience’ standard but has instead applied a Fourth Amendment reasonableness analysis in cases that, like Rochin, involved highly intrusive searches or seizures.” Lester v. City of Chicago, 830 F.2d 706, 711 (7th Cir.1987). Moreover, the Supreme Court has rejected the use of the Fourteenth Amendment’s “shocks the conscience” standard in Section 1983 claims involving excessive force under the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). “Because different standards attach to the various rights, identifying the proper constitutional approach is essential.” Gottlieb ex rel. Calabria v. Laurel Highlands School Dish., 272 F.3d 168, 171 (3d Cir.2001). Thus, “the difference between reviewing [the Government’s] actions under the reasonableness standard of the Fourth Amendment or the shocks the conscience standard of the Fourteenth Amendment may be determinative.” Id. The jurisprudence that has developed for “ordinary” Fourth Amendment violations — where the test is “reasonableness” — is critical to determining whether Fourth Amendment violations occurred in the first instance. However, a violation must be more than “unreasonable” for it to satisfy the higher threshold of an “egregious” Fourth Amendment violation under" }, { "docid": "23250381", "title": "", "text": "same reasons we are unpersuaded by her § 1983 claims, we also reject her secondary liability claims. We agree with the district court that amendment of her complaint would be futile and that Whitley’s motion to amend correctly was denied. V. CONCLUSION For the aforementioned reasons, the district court’s judgment is AFFIRMED. . The indecency with a child counts appear related to Ariaz’s conduct with A.M. in January 2007. . Whitley also asserts that she has sufficiently stated a constitutional violation under Rochin v. California, because Appellees’ conduct shocked the conscience. See 342 U.S. 165, 166, 172-74, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (conduct ”shock[ed] the conscience” and violated the Due Process Clause where arresting police officers ordered doctors to pump suspect's stomach to induce him to vomit two morphine capsules). During oral argument, Whitley expressly limited the grounds on which she sought relief and it thus is unclear whether she is still pursuing a claim under Rockin's shocks-the-conscience standard. As will be discussed, however, the alleged facts do not rise to the level of shocking the conscience: Whitley has not alleged that Appellees themselves sexually abused her; at best, she has shown that Appellees conducted a deficient investigation and failed to intervene earlier. Such circumstances do not conform to the extreme cases in which the shocks-the-conscience standard typically has been satisfied. See, e.g., Morris v. Dearborns, 181 F.3d 657, 668 (5th Cir.1999) (teacher fabricated sexual abuse charges against a student’s father); Rogers v. City of Little Rock, Ark., 152 F.3d 790, 797 (8th Cir.1998) (police officer raped woman in her house after stopping her for traffic violation). .To the extent Whitley asserts claims against Appellees in their official capacities, we find such claims also fail for lack of an underlying constitutional violation. See Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.2001) (municipal liability under § 1983 requires \"a policymaker; an official policy; and a violation of constitutional rights whose 'moving force’ is the policy or custom.” (citation omitted)). . The district court seemingly conflated Appellees' motions to dismiss as \"Motions to Dismiss Based Upon Qualified" }, { "docid": "22207536", "title": "", "text": "plaintiff must demonstrate a deprivation of an identified liberty or property interest protected by the Fourteenth Amendment. Pittsley, 927 F.2d at 6 (citing Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626-27, 67 L.Ed. 1042 (1923)). Under the second, a plaintiff is not required to prove the deprivation of a specific liberty or property interest, but, rather, he must prove that the state’s conduct “shocks the conscience.” Id. at 6 (quoting Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209-10, 96 L.Ed. 183 (1952)). Plaintiffs contend that compelling the minors’ attendance at the Program constitutes a substantive due process violation under both tests. A. Conscience Shocking Behavior Plaintiffs’ claim that the defendants engaged in conscience shocking behavior when they compelled the minor plaintiffs to attend the Program. The Supreme Court set the standard for analyzing claims of conscience shocking behavior in Rochin. In that case, the Court held that the government could not use evidence obtained by pumping a defendant’s stomach against his will because the state actor’s conduct was so egregious that it “shock[ed] the conscience” and offended even “hardened sensibilities.” Rochin, 342 U.S. at 172, 72 S.Ct. at 210. The Court explained that the stomach pumping employed by the state was “too close to the rack and screw to permit of constitutional differentiation.” Id. Similarly, we have found “conscience shocking” conduct only where the state actors engaged in “extreme or intrusive physical conduct.” Souza v. Pina, 53 F.3d 423, 427 (1st Cir.1995); Harrington v. Almy, 977 F.2d 37, 43-44 (1st Cir.1992) (reasonable fact-finder could find “conscience shocking” conduct where a police officer charged with child abuse was required to take a penile plethysmograph as a condition of his reinstatement). See also García v. Miera, 817 F.2d 650, 655 (10th Cir.1987) (corporal punishment of students may “shock the conscience” if it “caused injury so severe, was so disproportionate to the need presented, and was so inspired by malice or sadism ... that it amounted to a brutal and inhumane abuse of official power”) (quoting Hall v. Tawney, 621 F.2d 607, 613 (4th Cir.1980)). Although we" }, { "docid": "73509", "title": "", "text": "alleged actions as described by plaintiff. Not every threat will arise to the level of a constitutional violation, of course. But where the credibility of the threats presents a jury question as to whether the threats foreseeably resulted in the seizure of the person, a constitutional violation can occur. Cf. Black v. Stephens, 662 F.2d 181, 188 (3d Cir.1981), cert. denied, 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982); Douglas v. Marino, 684 F.Supp. 395, 398 (D.N.J.1988). Since it appears that Tackett’s threats did cause a loss of liberty, we need not decide what level of emotional distress, without more, is necessary to establish a constitutionally cognizable injury when the injury results from unreasonable threats of force. B. The Due Process Clause of the Fourteenth Amendment Cassady contends with little elaboration that her stand-off with Tackett on January 13, 1988 “shocks the conscience” in a civilized society. The “shock the conscience” language of course comes from Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952), where the Court held that police conduct in pumping a suspect’s stomach in search of evidence violates due process standards. In support of her claim, Cassady cites only White v. Rockford, 592 F.2d 381 (7th Cir.1979). There it was held that police abandonment of an arrestee’s children on a highway late on a cold night shocked the conscience and deprived them of due process rights. 592 F.2d at 383-84. Because White presents entirely different facts, it seems that the “shocks the conscience” holding in that case has little if any relevance to the present one. Trying to apply White to this case highlights the inchoate nature of the “shocks the conscience” standard, but is otherwise unhelpful. In Braley v. City of Pontiac, 906 F.2d 220, 224-25 (6th Cir.1990), this Circuit recently discussed this point in the context of a section 1983 suit against a police officer for false arrest, false imprisonment and malicious prosecution: Applying the “shock the conscience” test in an area other than excessive force ... is problematic. Not only are there fewer instances in" }, { "docid": "20312637", "title": "", "text": "See Brooks, 564 F.3d at 833; McCullah, 344 F.3d at 658-59. The Supreme Court has long counseled against shoe-horning into the more general protections of the Fourteenth Amendment claims for which another amendment provides more specific protection. See United States v. Lanier, 520 U.S. 259, 272 n. 7, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997); Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). It also has held, in a line of cases stemming from Parratt v. Taylor, 451 U.S. 527, 535-44, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), that a plaintiff cannot invoke the substantive due process clause where state laws provide an adequate post-deprivation remedy for the complained-of conduct. See McCullah, 344 F.3d at 658-59. But that is what the Foxes have done here. In their complaint, the Foxes allege that the defendants violated Kevin’s due process rights when they “deliberately fabricated false statements and deliberately obstructed justice, thereby causing the false arrest of [Kevin], causing him to be falsely imprisoned [and] prosecuted.... ” They also allege that the defendants “provided false allegations” and “withheld exculpatory evidence.” Kevin’s due process claim thus consists of nothing more than a hybrid of his Fourth Amendment false arrest and state law malicious prosecution claims, and accordingly, the due process claim is barred. See Brooks, 564 F.3d at 833; McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir.2003). Perhaps recognizing the strength of the defendants’ argument, the Foxes now argue that Kevin’s due process claim is hot connected to the conduct underlying their other claims, but instead rests on their theory that what happened to Kevin during his interrogation “shocks the conscience.” The Supreme Court has recognized that police conduct that “shocks the conscience” supports a due process claim under § 1983, Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), and we have acknowledged that a freestanding due process claim may succeed in a situation involving conscience-shocking interrogation tactics, see Wallace v. City of Chicago, 440 F.3d 421, 429 (7th Cir.2006). There is no clear-cut analysis to determine what constitutes “conscience-shocking” conduct;" }, { "docid": "22114397", "title": "", "text": "Alexandro, 675 F.2d 34, 39 (2d Cir.1982). Such an argument might in principle prevail even where, as here, the defendants were not entrapped by the Government. See United States v. Cuervelo, 949 F.2d 559, 565 (2d Cir.1991). However, only Government conduct that “ ‘shocks the conscience’ ” can violate due process. United States v. Chin, 934 F.2d 393, 398 (2d Cir.1991) (quoting Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952)); see also County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 1717 & n. 8, 140 L.Ed.2d 1043 (1998) (holding that substantive due process bars executive conduct that shocks the conscience). The paradigm examples of conscience-shocking conduct are egregious invasions of individual rights. See, e.g., Rochin, 342 U.S. at 172, 72 S.Ct. 205 (breaking into suspect’s bedroom, forcibly attempting to pull capsules from his throat, and pumping his stomach without his consent). Especially in view of the courts’ well-established deference to the Government’s choice of investigatory methods, see United States v. Myers, 692 F.2d 823, 843 (2d Cir.1982), the burden of establishing outrageous investigatory conduct is very heavy, see United States v. Schmidt, 105 F.3d 82, 91 (2d Cir.1997). The Government’s behavior, and in particular the role of Salem, does not shock the conscience. Undercover work, in which a Government agent pretends to be engaged in criminal activity, is often necessary to detect criminal conspiracies. If such work is to succeed, the undercover agent must have “something of valué to offer” the conspirators. Russell, 411 U.S. at 432, 93 S.Ct. 1637. Supplying such a resource “can hardly be said to violate” due process. Id. In Schmidt, we found that United States Marshals did not violate due process when they posed as hit men, accepted a prisoner’s solicitation to murder two guards during an escape, and then conducted a controlled breakout. See Schmidt, 105 F.3d at 85, 92. In this case, Salem’s contribution to the criminal conduct was proportionately far smaller: the defendants were already actively advancing a conspiracy, and they already had substantial resources and technical expertise. There is no evidence that" }, { "docid": "20312638", "title": "", "text": "the defendants “provided false allegations” and “withheld exculpatory evidence.” Kevin’s due process claim thus consists of nothing more than a hybrid of his Fourth Amendment false arrest and state law malicious prosecution claims, and accordingly, the due process claim is barred. See Brooks, 564 F.3d at 833; McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir.2003). Perhaps recognizing the strength of the defendants’ argument, the Foxes now argue that Kevin’s due process claim is hot connected to the conduct underlying their other claims, but instead rests on their theory that what happened to Kevin during his interrogation “shocks the conscience.” The Supreme Court has recognized that police conduct that “shocks the conscience” supports a due process claim under § 1983, Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), and we have acknowledged that a freestanding due process claim may succeed in a situation involving conscience-shocking interrogation tactics, see Wallace v. City of Chicago, 440 F.3d 421, 429 (7th Cir.2006). There is no clear-cut analysis to determine what constitutes “conscience-shocking” conduct; the question is whether the conduct is “too close to the rack and the screw.” See Rochin, 342 U.S. at 172, 72 S.Ct. 205. For example, on the one hand, forcing an emetic down a person’s throat to forcibly extract evidence from a suspect’s stomach shocks the conscience, see id., but on the other hand, lying to, threatening, or insulting a suspect does not, see Tinker v. Beasley, 429 F.3d 1324, 1329 (11th Cir.2005). We need not wade into the murky terrain between those extremes to determine on which end of the spectrum the defendants’ conduct falls, because the Foxes never presented to the jury their theory that the defendants’ interrogation tactics shock the conscience. The jury was instructed that it should find for Kevin on his due process claim if (1) the defendants created false evidence or statements by means of coercion, manipulation, or fabrication, and (2) that those acts harmed Kevin. The jury simply was never instructed that the due process claim turns on the interrogation tactics nor that it must find those" }, { "docid": "5605602", "title": "", "text": "Post, at 986. Both the method used by the district court and a close analysis of the rights asserted by the plaintiff reveal, however, that the rights created were new and contravened Supreme Court and circuit precedent. The method utilized by the district court, and subsequently endorsed in Riley II, to determine whether the plaintiffs substantive due process rights had been violated by the defendants demonstrates that the rights created were both new and not reflective of the type of principled extension of due process that “judicial self-restraint” envisions. In its special interrogatories to the jury, the district court improperly submitted legal questions to the jury. The court asked: [D]o you find by a preponderance of the evidence that the conduct of the defendants who denied plaintiff visitation with her child shocks the conscience or offends those standards of decency and fairness which express the notions of justice of English speaking peoples? and: Do you find by a preponderance of the evidence that the conduct of the defendants who demonstrated deliberate indifference, gross negligence, or intentional misconduct in caring for and supervising plaintiffs child while in the defendants’ custody and control shocks the conscience or offends the standards of decency and fairness which express the notions of justice of English speaking peoples? The term “shocks the conscience” comes from Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). In Rochin, the Supreme Court held that the use of a stomach pump by police to extract evidence from an unwilling defendant was so shocking that the Due Process Clause of the Fourteenth Amendment barred a criminal conviction based on such evidence. See id. at 172, 72 S.Ct. at 209-10. Because the Fourth and Fifth Amendments had not yet been incorporated into Fourteenth Amendment jurispru dence, and so were not yet enforceable against the states, the Court could not point to a specific constitutional provision violated by the forced extraction of evidence from the defendant’s stomach. See Mapp v. Ohio, 367 U.S. 643, 663-65, 81 S.Ct. 1684, 1696-97, 6 L.Ed.2d 1081 (1961)(Black, J., concurring). Therefore, the Court created" }, { "docid": "23092283", "title": "", "text": "of three elements: a policymaker; an official policy; and a violation of constitutional rights whose ‘moving force’ is the policy or custom.” Piotrowski, 237 F.3d at 578 (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018). We have stated time and again that “[w]ithout an underlying constitutional violation, an essential element of municipal liability is missing.” Becerra v. Asher, 105 F.3d 1042, 1048 (5th Cir.1997); see also Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (“[P]roper analysis requires us to separate two different issues when a § 1983 claim is asserted against a municipality: (1) whether plaintiffs harm was caused by a constitutional violation, and (2) if so, whether the city is responsible for that violation.”). Thus, even if the ineffective check-out policy was the moving force behind Jane’s injury, there can be no § 1983 liability unless Jane suffered a constitutional violation. Jane did not suffer a constitutional violation at the hands of Keyes because Keyes is not a state actor. The only state actions that could give rise to a constitutional violation in this case are the school’s failure to prevent Keyes from injuring Jane or the act of releasing Jane to Keyes. As explained above, these state actions are insufficient for purposes of the special relationship and state-created danger theories. The Does now contend that they have alleged a constitutional violation because the school’s conduct shocks the conscience. The Supreme Court recognized the shocks the conscience standard in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). There, the Court found a violation of Rochin’s substantive due process rights after police officers who had arrested Rochin ordered doctors to pump Rochin’s stomach to induce him to vomit two capsules of morphine that he had previously swallowed. Id. at 166, 72 S.Ct. 205. The Court determined that the state’s conduct “shock[ed] the conscience,” and therefore violated Rochin’s due process rights. Id. at 172, 72 S.Ct. 205. Later, in County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), the" }, { "docid": "23250380", "title": "", "text": "has sufficiently alleged a § 1983 claim, her municipal liability claims still would fail. “To establish municipal liability under § 1983, a plaintiff must show that (1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force behind the violation of a constitutional right.” Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 847 (5th Cir.2009). The proposed amended complaint makes no specific factual allegations of the county’s policies and simply adds the words “policies, practices, and/or customs” to Whitley’s perceived wrongs. Such allegations are insufficient to survive dismissal. See Spiller v. City of Tex. City, Police Dep’t, 130 F.3d 162, 167 (5th Cir.1997) (conclusory description of policy or custom insufficient). Her secondary liability claims similarly fail for lack of a § 1983 violation by Appellees. See Hale, 45 F.3d at 920 (“[A] conspiracy claim is not actionable without an actual violation of section 1983.” (internal quotation marks and citation omitted)). Additionally, her aiding and abetting, assisting and participating, and conspiracy claims merely restate her § 1983 allegations. For the same reasons we are unpersuaded by her § 1983 claims, we also reject her secondary liability claims. We agree with the district court that amendment of her complaint would be futile and that Whitley’s motion to amend correctly was denied. V. CONCLUSION For the aforementioned reasons, the district court’s judgment is AFFIRMED. . The indecency with a child counts appear related to Ariaz’s conduct with A.M. in January 2007. . Whitley also asserts that she has sufficiently stated a constitutional violation under Rochin v. California, because Appellees’ conduct shocked the conscience. See 342 U.S. 165, 166, 172-74, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (conduct ”shock[ed] the conscience” and violated the Due Process Clause where arresting police officers ordered doctors to pump suspect's stomach to induce him to vomit two morphine capsules). During oral argument, Whitley expressly limited the grounds on which she sought relief and it thus is unclear whether she is still pursuing a claim under Rockin's shocks-the-conscience standard. As will be discussed, however, the alleged facts do not rise to the level" }, { "docid": "8418092", "title": "", "text": "freedom that was infringed by the State’s decision to reincarcerate him. IV. I would grant Hawkins relief even should the “shocks the conscience” test apply to the case at bar. The shocks the conscience test only applies to discretionary executive actions. I thus analyze Hawkins’ claim under this test as if the State made a discretionary decision to reincarcerate Hawkins after his successful reintegration into society. Executive action violates substantive due process “only when it ‘can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.’ ” Lewis, 118 S.Ct. at 1717 (quoting Collins, 503 U.S. at 128, 112 S.Ct. 1061). The government’s conduct must be “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Id. 118 S.Ct. at 1717 n. 8. The Supreme Court developed the “shocks the conscience” test in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). In Rochin, the police pumped the stomach of a suspect in an effort to obtain incriminating drug evidence. The Court held that the police’s conduct violated due process because “we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience.” Id. at 172, 72 S.Ct. 205. A recent decision interpreting Lewis also provides an example of the kind of oppressive conduct that “shocks the conscience.” The government’s conduct satisfied the “shocks the conscience” test in Armstrong v. Squadrito, 152 F.3d 564 (7th Cir.1998). In Armstrong, the plaintiff was a “deadbeat dad” who was behind on his child support, and, therefore, had to report to the county jail. See id. at 567. Local officials told the plaintiff that following a “brief detention” at the lockup, he would receive a court date and then be released that same day. Due to an administrative error, the plaintiff remained incarcerated for fifty-seven days. See id. at 568. The court stated that the officials’ “will call policy was deficient and their practice of refusing complaints was appalling.”" }, { "docid": "4032973", "title": "", "text": "compel the availability of the exclusionary rule in civil deportation proceedings. Lopez-Mendoza, 468 U.S. at 1050, 104 S.Ct. 3479. In support of the plurality’s exception for egregious Fourth Amendment violations, Justice O’Connor looked to Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), and to two BIA cases in which “fundamentally unfair” evidence was suppressed. Lopez-Mendoza, 468 U.S. at 1050-51 & 1051 n. 5, 104 S.Ct. 3479. In Rochin, a criminal case, when police officers entered the defendant’s bedroom he promptly swallowed two unidentified capsules. 342 U.S. at 166, 72 S.Ct. 205. In order to recover the capsules, the officers handcuffed Rochin and took him to the hospital, where his stomach was forcibly pumped to induce vomiting. Id. At Rochin’s trial for possessing a preparation of morphine, the recovered capsules were the chief evidence against him. Id. After the California Supreme Court declined to review Rochin’s conviction, the Supreme Court granted certiorari and reversed because the officers’ conduct “shock[ed] the conscience.” Id. at 172, 72 S.Ct. 205. We do not read the Supreme Court’s citation to Rochin as an indication that the Court requires equally flagrant violations before it is willing to label them “egregious.” As the Third Circuit recently pointed out, the Supreme Court’s decision in Rochin preceded its incorporation of the Fourth Amendment against the states via the Fourteenth Amendment in Mapp v. Ohio, 367 U.S. 643, 655-57, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Oliva-Ramos, 694 F.3d at 276. “ ‘Consequently, the Court has not relied on the Rochin shocks the conscience standard but has instead applied a Fourth Amendment reasonableness analysis in cases that, like Rochin, involved highly intrusive searches or seizures.’” Id. (quoting Lester v. City of Chicago, 830 F.2d 706, 711 (7th Cir.1987) (additional internal quotation marks omitted)); see also Maryland v. King, — U.S. -, 133 S.Ct. 1958, 1969, 186 L.Ed.2d 1 (2013). Still, if a Fourth Amendment violation is measured by what is reasonable, then an egregious violation must surely be something more than unreasonable. See Oliva-Ramos, 694 F.3d at 276. Justice O’Connor does not directly address what" }, { "docid": "5605603", "title": "", "text": "intentional misconduct in caring for and supervising plaintiffs child while in the defendants’ custody and control shocks the conscience or offends the standards of decency and fairness which express the notions of justice of English speaking peoples? The term “shocks the conscience” comes from Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). In Rochin, the Supreme Court held that the use of a stomach pump by police to extract evidence from an unwilling defendant was so shocking that the Due Process Clause of the Fourteenth Amendment barred a criminal conviction based on such evidence. See id. at 172, 72 S.Ct. at 209-10. Because the Fourth and Fifth Amendments had not yet been incorporated into Fourteenth Amendment jurispru dence, and so were not yet enforceable against the states, the Court could not point to a specific constitutional provision violated by the forced extraction of evidence from the defendant’s stomach. See Mapp v. Ohio, 367 U.S. 643, 663-65, 81 S.Ct. 1684, 1696-97, 6 L.Ed.2d 1081 (1961)(Black, J., concurring). Therefore, the Court created a new right under the substantive component of the Due Process Clause, delineating a practice in which the states could not engage. In effect, the Court interpreted the Due Process Clause to contain a new provision proscribing the forced extraction of evidence from a defendant’s stomach. By allowing the jury in this case to determine whether the defendants’ conduct “shocked the conscience,” the district court allowed the jury to create and define new due process rights under the Fourteenth Amendment. The appellants raised this issue on appeal, but the Riley II panel ignored their argument and did not address the issue of whether the defendants’ conduct shocked the conscience. Instead, the panel simply found that the jury’s findings were “supported by substantial evidence,” and so affirmed the district court’s ruling. Ante at 960. The panel did not even question whether the rights as defined by the jury were rights actually guaranteed by the substantive component of the due process clause. The panel’s oversight is even more egregious considering that this circuit, sitting en banc, has" }, { "docid": "14883381", "title": "", "text": "the Fourteenth Amendment. In the wake of Gamer, a debate has arisen as to whether claims predicated on the intentional use of allegedly excessive force in making arrests ought to be analyzed in terms of the search and seizure clause of the Fourth Amendment or in terms of the due process clause of the Fourteenth Amendment. See, e.g., the majority, concurring and dissenting opinions in Gumz v. Morrissette, 772 F.2d 1395 (7th Cir.1985), cert. denied, 475 U.S. 1123, 106 S.Ct. 1644, 90 L.Ed.2d 189 (1986); Lester v. City of Chicago, 830 F.2d 706 (7th Cir.1987); and Justice v. Dennis, 834 F.2d 380 (4th Cir.1987) (en banc). This circuit has followed both approaches; see, e.g., Leber v. Smith, 773 F.2d 101 (6th Cir.1985) (sheriffs deputy did not act “unreasonably,” within the meaning of the Fourth Amendment, in drawing his gun when attempting to arrest emotionally disturbed motorist); Lewis v. Downs, 774 F.2d 711 (6th Cir.1985) (police officers who kicked a handcuffed woman and struck her husband and son with nightsticks in the course of arresting them violated plaintiffs’ Fourteenth Amendment due process rights under a “shocks the conscience” test derived from Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209-10, 96 L.Ed. 183 (1952)); and Dugan v. Brooks, 818 F.2d 513 (6th Cir.1987) (complaint alleging that police officers stuck plaintiff with nightstick before arresting him stated colorable claim for violation of both the search and seizure component of the Fourth Amendment and “the substantive component of the due process clause of the fourteenth amendment”). Whatever legitimacy the concept of “substantive due process” may have in other contexts, it seems to us that in the case at bar, where the pro se plaintiff has cited no specific constitutional provision but has alleged that excessive force was intentionally used in effecting his arrest, there is no need to look beyond the Fourth Amendment in determining whether the plaintiff made out a jury case. In the face of a constitutional commandment that plainly says that “thou shalt not violate anyone’s right to be secure in his person against unreasonable seizure,” our respect" }, { "docid": "14227667", "title": "", "text": "F.3d 309, 320-21, 2016 WL 1213270, at *8 (7th Cir. March 29, 2016). ' As we explained in Armstrong, however, the key to a civil Brady claim is not a conviction or acquittal but a deprivation of liberty. Armstrong, 786 F.3d at 553-55. Under other circumstances, such as where an accused is held in. pretrial custody before acquittal or dismissal, a failure to disclose exculpatory evidence may cause the type of deprivation of liberty required for a Brady claim even if the case ends without a trial or conviction. . Id, at 553 (allowing such a claim for prolonged pretrial detention caused by destruction of exculpatory evidence). C. Interrogation of Cairel Plaintiff Cairel’s final federal claim is that defendants violated his substantive due process rights when they interrogated him. Cairel argues that because he is cognitively impaired, defendants’ interrogation of him “shocked the conscience” and violated the substantive due process guarantees of the Fourteenth Amendment. A plaintiff may sue under §..1983 for police behavior that “shocks the conscience,” including “conscience-shocking interrogation tactics.” Fox v. Hayes, 600 F.3d 819, 841 (7th Cir.2010), citing Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), and Wallace v. City of Chicago, 440 F.3d 421, 429 (7th Cir.2006). Determining what constitutes 'such behavior can be difficult; the ultimate question is “whether the conduct is ‘too close to the rack and the screw.’” Id., quoting Rochin, 342 U.S. at 172, 72 S.Ct. 205. “[L]ying to, threatening, or insulting a suspect” does not shock the conscience. See id., citing Tinker v. Beasley, 429 F.3d 1324, 1329 (11th Cir.2005). And the “official c'onduct ‘most likely to rise to the conscience-shocking level’ is the ‘conduct intended to injure in some way unjustifiable by any govérnment interest.’ ” Chavez v. Martinez, 538 U.S. 760, 775, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003), quoting County of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). No reasonable :juror could find that the tactics the police used with Cairel shock the conscience., .They used ordinary interrogation .tactics.. They may have been particularly insistent," }, { "docid": "22207535", "title": "", "text": "plaintiffs federally protected rights.” Singer, 49 F.3d at 844 (citations omitted). Accordingly, we first address each of the plaintiffs’ claims to determine whether it states a cause of action under federal law. If any of the claims meet this threshold requirement, we will then proceed to the issue of qualified immunity. I. Privacy Rights and Substantive Due Process The Fourteenth Amendment provides that “[n]o State shall ... deprive any person of life liberty or property without due process of law.” U.S. Const, amend XIV. The substantive component of due process protects against “certain government actions regardless of the fairness of the procedures used to implement them.” Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986). See also Pittsley v. Warish, 927 F.2d 3, 6 (1st Cir.1991) (comparing substantive due process to procedural due process) (citing Monroe v. Pape, 365 U.S. 167, 171-72, 81 S.Ct. 473, 475-76, 5 L.Ed.2d 492 (1961)). There are two theories under which a plaintiff may bring a substantive due process claim. Under the first, a plaintiff must demonstrate a deprivation of an identified liberty or property interest protected by the Fourteenth Amendment. Pittsley, 927 F.2d at 6 (citing Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626-27, 67 L.Ed. 1042 (1923)). Under the second, a plaintiff is not required to prove the deprivation of a specific liberty or property interest, but, rather, he must prove that the state’s conduct “shocks the conscience.” Id. at 6 (quoting Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209-10, 96 L.Ed. 183 (1952)). Plaintiffs contend that compelling the minors’ attendance at the Program constitutes a substantive due process violation under both tests. A. Conscience Shocking Behavior Plaintiffs’ claim that the defendants engaged in conscience shocking behavior when they compelled the minor plaintiffs to attend the Program. The Supreme Court set the standard for analyzing claims of conscience shocking behavior in Rochin. In that case, the Court held that the government could not use evidence obtained by pumping a defendant’s stomach against his will because the state actor’s conduct was so" }, { "docid": "7615630", "title": "", "text": "[parallel citations omitted] (1998). The threshold question is huhether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. ’ Id. at 848 n. 8,118 S.Ct. 1708. (emphasis added); see also Chavez, 538 U.S. at-, 123 S.Ct. at 2005 (Thomas, J.) (“Convictions based on evidence obtained by methods that are ‘so brutal and so offensive to human dignity’ that they ‘shoc[k] the conscience’ violate the Due Process Clause.”) (quoting Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952)). A review of Supreme Court case law reveals that an individual must demonstrate more than that police conduct resulted in an involuntary statement to make out a Fourteenth Amendment substantive due process claim. For example, in the classic case of Rochin, the Supreme Court concluded that the conduct of the police shocked the conscience, and that the use of the evidence at trial violated the defendant’s Fourteenth Amendment right to due process, where the police directed a doctor to force an emetic solution through a tube into the defendant’s stomach against his will to obtain evidence. The Supreme Court, which throughout its opinion focused on the physical brutality of the police conduct, noted that the methods by which the evidence was obtained were “too close to the rack and the screw to permit of constitutional differentiation.” Rochin, 342 U.S. at 172, 72 S.Ct. 205. Similarly, the plurality in Chavez noted that the Fourteenth Amendment substantive due process clause remains available in cases involving “police torture or other abuse that results in a confession .... ” 538 U.S. at -, 123 S.Ct. at 2004 (Thomas, J.) (emphasis added). In contrast, in Moran v. Burbine, 475 U.S. 412, 433-434, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) the court concluded that the failure of the police to inform a suspect of efforts of an attorney, who had been retained by defendant’s sister without his knowledge, to reach him while he was being interrogated fell “short of the kind of misbehavior that so shocks the sensibilities of civilized society”" }, { "docid": "13698439", "title": "", "text": "474 U.S. 327, 331, 106 S.Ct. 677, 88 L.Ed.2d 662 (1986). The Supreme Court has cautioned, however, that it “has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this uncharted area are scarce and open-ended.” Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). In order for a plaintiff to maintain a substantive due process claim, she must demonstrate that the government actor’s ac-turns were “arbitrary, or conscience-shocking, in a constitutional sense.” Id. 503 U.S. at 128, 112 S.Ct. 1061. Substantive due process does not provide protection against state actions that are merely ‘“incorrect or ill-advised.’ ” Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir.1994) (citation omitted). Therefore, most claims sounding in tort do not constitute substantive due process violations. Indeed, even intentional torts by government actors are not actionable as substantive due process violations unless they are “arbitrary and discriminatory” or “shock the conscience.” Interport Pilots Agency, Inc. v. Sammis, 14 F.3d 133, 144 (2d Cir.1994). Plaintiff alleges that Ogunleye made lewd remarks and coerced her into signing the January 22 letter by threatening that he had the authority to take Alexandria away from her. As both parties agreed at oral argument, since a credible report of child abuse with respect to Janel had been filed on January 10,1992, Ogunleye’s “threat” that he possessed the power to take Alexandria away from plaintiff was an accurate statement of his authority. In essence, then, plaintiff contends that Ogunleye’s harassing comments violated her substantive due process rights. Putting aside the effect those comments could have had on the validity of the instrument she signed, a question not before me now, plaintiff has not alleged the type of oppression that gives rise to a substantive due process claim. Compare Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (conduct of officers, who forcibly had suspect’s stomach pumped, shocked the conscience) and Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992) (forced administration of psychotropic drugs violated substantive" }, { "docid": "5879973", "title": "", "text": "denial of fundamental procedural fairness or in the exercise of power without any reasonable justification.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). In essence, to state a claim under the substantive component of the Due Process Clause, a plaintiff must show that the defendant’s misconduct is “conscience shocking, in a constitutional sense.” Collins v. City of Harker Heights, 503 U.S. 115, 128, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). Only “the most egregious official conduct” meets this threshold. Sacramento, 523 U.S. at 846, 118 S.Ct. 1708. The question of whether conduct is shocking in a constitutional sense is highly context specific. Bolmer v. Oliveira, 594 F.3d 134, 143 (2d Cir.2010). In Rochin v. California, the Supreme Court held that the forced pumping of a suspect’s stomach was sufficiently shocking to constitute a substantive due process violation. 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952). However, in County of Sacramento v. Lewis, the Supreme Court held that a police officer’s decision to commence a high speed chase of a motorcyclist that resulted in his death did not “shock the conscience.” 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Similarly, in Cox v. Warwick Valley Central School District, the Second Circuit affirmed denial of a substantive due process claim against a school administrator who reported unfounded suspicions of child abuse to state officials. 654 F.3d 267, 271 (2d Cir.2011). Likewise, in Lombardi v. Whitman, the Second Circuit affirmed dismissal of the plaintiffs substantive due process claim where federal officials made public statements erroneously indicating that the air at the site of the September 11, 2001 terrorist attacks was safe to breathe. 485 F.3d 73, 85 (2d Cir.2007). Here, plaintiff alleges that he has been subjected to more than two years of investigation by defendants. FAC ¶ 30. He claims that defendants have threatened his business associates with criminal prosecution in order to secure their cooperation in the investigation. FAC ¶28. Moreover, he claims that defendants have inquired into his political activities and political affiliations, demonstrating a motivation to" } ]

[ { "docid": "19177769", "title": "", "text": "extravagant applica tion of the language quoted to say that it could be extended to include the owner of a place of amusement who does not necessarily buy, sell or exchange merchandise or otherwise participate in commerce. Asakura v. Seattle, 265 U. S. 332, relied on by plaintiff, does not support his contention. It was there held that the treaty with Japan of February 21, 1911, 37 Stat. 1504, was violated by a municipal ordinance prohibiting the granting of pawnbrokers’ licenses to non-citizens. That treaty secured to the citizens of Japan the right to “ enter, travel and reside ” in the United States and “ to' carry on trade, wholesale and retail ... . and generally to do anything incident to or necessary for trade.” This language, which is plainly broader in some respects than that of the British treaty, was held to embrace.within its protection a Japanese pawnbroker whose business, in contrast to that of plaintiff, necessarily involved the lending of money on the security of merchandise and the sale of merchandise when necessary to realize on the security. The objections to the constitutionality of the ordinance are not persuasive. Although the Fourteenth Amendment has been held to prohibit plainly irrational discrimination against aliens, Yick Wo v. Hopkins, 118 U. S. 356; Truax v. Raich, 239 U. S. 33; In re Tiburcio Parrott, 1 Fed. 481; In re Ah Chong, 2 Fed. 733; Ho Ah Kow v. Nunan, 5 Sawy. 552, 12 Fed. Cases, #6546; Wong Wai v. Williamson, 103 Fed. 1; Fraser v. McConway & Torley Co., 82 Fed. 257, it does not follow that alien race and allegiance may not bear in some instances such a relation to a legitimate object of legislation as to be made, the basis of a permitted classification. Patsone v. Pennsylvania, 232 U. S. 138; Crane v. New York, 239 U. S. 195, 198; Terrace v. Thompson, 263 U. S. 197; Porterfield v. Webb, 263 U. S. 225; Webb v. O’Brien, 263 U. S. 313; Frick v. Webb, 263 U. S. 326; Cockrill v. California, 268 U. S. 258; cf. McCready" } ]

[ { "docid": "22746136", "title": "", "text": "regulating related matters, has purposely left untouched a distinctive part of a subject which is peculiarly adapted to local regulation, the state may legislate concerning such local matters which Congress could have covered but did not. Kelly v. Washington, 302 U. S. 1, 9, 10, 11, 12, 13, 14 (inspection for seaworthiness of hull and machinery of motor-driven tugs). And see Reid v. Colorado, 187 U. S. 137, 147 (prohibition on introduction of diseased cattle or horses); Savage v. Jones, 225 U. S. 501, 529, 532 (requirement that certain labels reveal package contents); Carey v. South Dakota, 250 U. S. 118, 121 (prohibition of shipment by carrier of wild ducks); Dickson v. Uhlmann Grain Co., 288 U. S. 188, 199 (prohibition of margin transactions in grain where there' is no intent to deliver); Mintz v. Baldwin, 289 U. S. 346, 350-352 (inspection of cattle for infectious diseases); Maurer v. Hamilton, 309 U. S. 598, 604, 614 (prohibition of car-over-cab trucking). As supporting the contention that the state can enforce its alien registration legislation, even though Congress has acted on the identical subject, appellant relies upon a number of previous opinions of this Court. Ohio ex rel. Clarke v. Deckebach, 274 U. S. 392, 395, 396; Frick v. Webb, 263 U. S. 326, 333; Webb v. O’Brien, 263 U. S. 313, 321, 322; Terrace v. Thompson, 263 U. S. 197, 223, 224; Heim v. McCall, 239 U. S. 175, 193, 194. In each of those cases this Court sustained state legislation which applied to aliens only, against an attack on the ground that the laws violated the equal protection clause of the Constitution. In each case, however, the Court was careful to point out that the state law was not in violation of any valid treaties adopted by the United States, and in no instance did it appear that Congress had passed legislation on the subject. In the only case of this type in which there was an outstanding treaty provision in conflict with the state law, this Court held the state law invalid. Asakura v. Seattle, 265 U. S. 332." }, { "docid": "22828121", "title": "", "text": "and transfer real property, or any interest therein” in California only to the extent allowed by treaty between the United States and the nation of which the alien is a citizen. The United States-Japanese Treaty of 1911, which guaranteed Japanese in this country the right to own and lease land “for residential and commercial purposes,” 37 Stat. 1504, was abrogated effective January 26, 1940. Dept. of State Bull., July 29, 1939, p. 81. Since the abrogation of this treaty, it is doubtful whether Japanese aliens in California may own or rent a home or a business. We are told that a recent intermediate court decision upholding the right of Japanese aliens to rent a building for business purposes, Palmero v. Stockton Theatres, 172 P. 2d 103 (1946), has been appealed to the Supreme Court of California. Terrace v. Thompson, 263 U. S. 197; Porterfield v. Webb, 263 U. S. 225; Webb v. O’Brien, 263 U. S. 313; Frick v. Webb, 263 U. S. 326. United Nations Charter, Articles 55c and 56; 59 Stat. 1045, 1046 (1945). Mr. Justice Murphy, with whom Mr. Justice Rutledge joins, concurring. To me the controlling issue in this case is whether the California Alien Land Law on its face is consistent with the Constitution of the United States. Can a state prohibit all aliens ineligible for American citizenship from acquiring, owning, occupying, enjoying, leasing or transferring agricultural land? Does such a prohibition square with the language of the Fourteenth Amendment that no state shall “deny to any person within its jurisdiction the equal protection of the laws”? The negative answer to those queries is dictated by the uncompromising opposition of the Constitution to racism, whatever cloak or disguise it may assume. The California statute in question, as I view it, is nothing more than an outright racial discrimination. As such, it deserves constitutional condemnation. And since the very core of the statute is so defective, I consider it necessary to give voice to that fact even though I join in the opinion of the Court. In its argument before us, California has disclaimed any implication" }, { "docid": "22402836", "title": "", "text": "the ground that the challenged code provision was valid under the Federal Constitution and that the Commission’s refusal to grant a license was required by its terms. Since the state court of last resort relied solely upon federal grounds for its decision, we may properly review its action here. The opinion cited the following cases: McCready v. Virginia, 94 U. S. 391; Patsone v. Pennsylvania, 232 U. S. 138; Hauenstein v. Lynham, 100 U. S. 483; and Blythe v. Hinckley, 180 U. S. 333. Truax v. Raich, supra; Chy Lung v. Freeman, 92 U. S. 275, 280; see Hines v. Davidowitz, supra at 65-68. Yick Wo v. Hopkins, supra at 369; United States v. Wong Kim Ark, 169 U. S. 649, 696; In re Tiburcio Parrott, 1 F. 481, 508-509; Fraser v. McConway & Torley Co., 82 F. 257. Terrace v. Thompson, 263 U. S. 197; Porterfield v. Webb, 263 U. S. 225; Webb v. O’Brien, 263 U. S. 313; Frick v. Webb, 263 U. S. 326. See Oyama v. California, 332 U. S. 633, 646, 649, 672. Mr. Justice Murphy, with whom Mr. Justice Rutledge agrees, concurring. The opinion of the Court, in which I join, adequately expresses my views as to all but one important aspect of this case. That aspect relates to the fact that § 990 of the California Fish and Game Code, barring those ineligible to citizenship from securing commercial fishing licenses, is the direct outgrowth of antagonism toward persons of Japanese ancestry. Even the most cursory examination of the background of the statute demonstrates that it was designed solely to discriminate against such persons in a manner inconsistent with the concept of equal protection of the laws. Legislation of that type is not entitled to wear the cloak of constitutionality. The statute in question is but one more manifestation of the anti-Japanese fever which has been evident in California in varying degrees since the turn of the century. See concurring opinion in Oyama v. California, 332 U. S. 633, 650, and dissenting opinion in Korematsu v. United States, 323 U. S. 214, 233. That" }, { "docid": "22999895", "title": "", "text": "that the statute was overbroad, because it excluded all resident aliens from all teaching jobs regardless of the subject sought to be taught, the alien’s nationality, the nature of the alien’s relationship to this country, and the alien’s willingness to substitute some other sign of loyalty to this Nation’s political values, such as an oath of allegiance. Id., at 921. We noted probable jurisdiction over the state school officials’ appeal, 436 U. S. 902 (1978), and now reverse. II A The decisions of this Court regarding the permissibility of statutory classifications involving aliens have not formed air unwavering line over the years. State regulation of the employment of aliens long has been subject to constitutional constraints. In Yick Wo v. Hopkins, 118 U. S. 356 (1886), the Court struck down an ordinance which was applied to prevent aliens from running laundries, and in Truax v. Raich, 239 U. S. 33 (1915), a law requiring at least 80% of the employees of certain businesses to be citizens was held to be an unconstitutional infringement of an alien’s “right to work for a living in the common occupations of the community. ...” Id., at 41. At the same time, however, the Court also has recognized a greater degree of latitude for the States when aliens were sought to be excluded from public employment. At the time Truax was decided, the governing doctrine permitted States to exclude aliens from various activities when the restriction pertained to “the regulation or distribution of the public domain, or of the common property or resources of the people of the State . . . .” Id., at 39. Hence, as part of a larger authority to forbid aliens from owning land, Frick v. Webb, 263 U. S. 326 (1923); Webb v. O’Brien, 263 U. S. 313 (1923); Porterfield v. Webb, 263 U. S. 225 (1923); Terrace v. Thompson, 263 U. S. 197 (1923); Blythe v. Hinckley, 180 U. S. 333 (1901); Hauenstein v. Lynham, 100 U. S. 483 (1880); harvesting wildlife, Patsone v. Pennsylvania, 232 U. S. 138 (1914); McCready v. Virginia, 94 U. S. 391 (1877);" }, { "docid": "22098733", "title": "", "text": "need not attempt to lay down any universal rule to apply to new and unknown situations. It is enough for present purposes that this case falls within the scope of the earlier decisions and that the exercise of legislative power now considered-was not arbitrary. The question as stated is not one of reasonable prices, but of the constitutional right in the circumstances of this case to exact exorbitant profits beyond reasonable prices. The, economic consequence of this regulation upon individual ownership is no greater, nor is it essentially different from that inflicted by regulating rates to be charged by laundries, Oklahoma Operating Co. v. Love, 252 U. S. 331 (semble), by’anti-monopoly laws, Sunday laws, usury statutes, Griffith v. Connecticut, 218 U. S. 563; Workmen’s Compensation Acts, New York Central R. R. v. White, 243 U. S. 188; the zoning ordinance upheld in Village of Euclid v. Ambler Realty Co., supra; or state statutes restraining the owner ,of land from leasing it to Japanese or Chinese aliens, upheld in Terrace v. Thompson, 263 U. S. 197; Webb v. O’Brien, 263 U. S. 313; or state prohibition laws upheld in Mugler v. Kansas, 123 U. S. 623; or legislation prohibiting option contracts for future sales of grain,. Booth v. Illinois, 184 U. S. 425, or invalidating sales of stock on margin or for “ futures,” Otis v. Parker, 187 U. S. 606; or statutes preventing the maintenance of pool parlors, Murphy v. California, 225 U. S. 623, or in numerous other cases'in which the exercise of private rights has been restrained in the public interest. Noble State Bank v. Haskell, 219 U. S. 104; Central Lumber Co. v. South Dakota, 226 U. S. 157; St. Louis Poster Advertising Co. v. St. Louis, 249 U. S. 269; Terminal Taxicab Co. v. Dist. of Columbia, 241 U. S. 252; Mutual Loan Co. v. Martell, 222 U. S. 225; Schmidinger v. Chicago, 226 U. S. 578; cf. Green v. Frazier, 253 U. S. 233; National Ins. Co. v. Wanberg, 260 U. S. 71; Clark v. Nash 198 U. S. 361. Nor is the exercise of" }, { "docid": "22933607", "title": "", "text": "Justice Stone: I think the judgment should be affirmed. The decision of the Court appears to me to depart radically from the salutary principle that Congress, in enacting legislation within its constitutional authority, will not be deemed to have intended to strike down a state statute designed to protect the health and safety of the public unless the state act, in terms or in its practical administration, conflicts with the act of Congress or plainly and palpably infringes its policy. Sinnot v. Davenport, 22 How. 227, 243; Missouri, K. & T. Ry. Co. v. Haber, 169 U. S. 613, 623; Reid v. Colorado, 187 U. S. 137, 148; Savage v. Jones, 225 U. S. 501, 533; Missouri, K. & T. Ry. Co. v. Harris, 234 U. S. 412, 419; Carey v. South Dakota, 250 U. S. 118, 122; Atchison, T. & S. F. Ry. Co. v. Railroad Commission, 283 U. S. 380, 391; Townsend v. Yeomans, 301 U. S. 441, 454; Kelly v. Washington, 302 U. S. 1, 10; cf. Maurer v. Hamilton, 309 U. S. 598, 614. We have here no question of an unexercised discretionary power given by Congress to a federal official as the means of regulating interstate commerce, where the full exercise of his authority would conflict with an assertion of the state power. In such circumstances the state’s authority to act turns upon the question, which this Court has often been called upon to answer, whether the failure of the federal official to exercise his full power is in effect a controlling administrative ruling that no further regulation by either federal or state government is needful. Napier v. Atlantic Coast Line Ry. Co., 272 U. S. 605; cf. Mintz v. Baldwin, 289 U. S. 346; Northwestern Bell Telephone Co. v. Railway Commission, 297 U. S. 471; Welch Co. v. New Hampshire, 306 U. S. 79. Here, concededly, the Secretary is exercising all the authority he has. His authority under 32 Stat. 198, 26 U. S. C. § 2325, to seize and condemn is restricted to the manufactured product, “renovated butter.” It does not extend to" }, { "docid": "22746137", "title": "", "text": "Congress has acted on the identical subject, appellant relies upon a number of previous opinions of this Court. Ohio ex rel. Clarke v. Deckebach, 274 U. S. 392, 395, 396; Frick v. Webb, 263 U. S. 326, 333; Webb v. O’Brien, 263 U. S. 313, 321, 322; Terrace v. Thompson, 263 U. S. 197, 223, 224; Heim v. McCall, 239 U. S. 175, 193, 194. In each of those cases this Court sustained state legislation which applied to aliens only, against an attack on the ground that the laws violated the equal protection clause of the Constitution. In each case, however, the Court was careful to point out that the state law was not in violation of any valid treaties adopted by the United States, and in no instance did it appear that Congress had passed legislation on the subject. In the only case of this type in which there was an outstanding treaty provision in conflict with the state law, this Court held the state law invalid. Asakura v. Seattle, 265 U. S. 332. Yick Wo v. Hopkins, 118 U. S. 356, 369. 8 U. S. C. §§ 152, 373, 377(c), 382, 398, 399(a). Cf. Prigg v. Pennsylvania, 16 Pet. 539, 622, 623. As early as 1641, in the Massachusetts “Body of Liberties,” we find the statement that “Every person within this Jurisdiction, whether inhabitant or forreiner, shall enjoy the same justice and law that is generall for the plantation . . .” 1 Stat. 570, 577. See Field, J., dissenting in Fong Yue Ting v. United States, 149 U. S. 698, 746-750. Cf. 84 Cong. Rec. 9534. Quoted in Fong Yue Ting v. United States, supra, 743. E. g., H. R. 9101 and H. R. 9147, 71st Cong., 2nd Session; see 72 Cong. Rec. 3886. The requirement that cards be carried and exhibited has always been regarded as one of the most objectionable features of proposed registration systems, for it is thought to be a feature that best lends itself to tyranny and intimidation. Congressman Celler, speaking in 1928 of the repeated defeat of registration bills and of" }, { "docid": "22224320", "title": "", "text": "wide range for the permissible exercise of power appropriate to their ter ritorial jurisdiction although interstate commerce may be affected. Minnesota Rate Cases, 230 U. S. 352, 402. States are thus enabled to deal with local exigencies and to exert in the absence of conflict with federal legislation an essential protective power. And when Congress does exercise its paramount authority, it is obvious that Congress may determine how far its regulation shall go. There is no constitutional rule which compels Congress to occupy the whole field. Congress may circumscribe its regulation and occupy only a limited field. When it does so, state regulation outside that limited field and otherwise admissible is not forbidden or displaced. The principle is thoroughly established that the exercise by the State of its police power, which would be valid if not superseded by federal action, is superseded only where the repugnance or conflict is so “direct and positive” that the two acts cannot “be reconciled or consistently stand together.” Sinnot v. Davenport, 22 How. 227, 243; Missouri, K. & T. Ry. Co. v. Haber, 169 U. S. 613, 623, 624; Reid v. Colorado, 187 U. S. 137, 148; Crossman v. Lurman, 192 U. S. 189, 199, 200; Asbell v. Kansas, 209 U. S. 251, 257, 258; Missouri Pacific Ry. Co. v. Larabee Mills, 211 U. S. 612, 623; Savage v. Jones, 225 U. S. 501, 533; Atlantic Coast Line v. Georgia, 234 U. S. 280, 293, 294; Carey v. South Dakota, 250 U. S. 118, 122; Atchison, T. & S. P. Ry. Co. v. Railroad Commission, 283 U. S. 380, 392, 393; Mintz v. Baldwin, 289 U. S. 346, 350. Gilvary v. Cuyahoga Valley Ry. Co., supra. A few illustrations will suffice. In Reid v. Colorado, supra, the question arose with respect to a statute of Colorado aimed at the prevention of the introduction into the State of diseased animals. One who had been convicted of its violation contended that the subject of the transportation of cattle by one State to another had been so far covered by the federal statute, known as the Animal" }, { "docid": "22746135", "title": "", "text": "U. S. 624); Kelly v. Washington, 302 U. S. 1, 10, 11; Maurer v. Hamilton, 309 U. S. 598, 604; Bacardi Corporation v. Domenech, 311 U. S. 150, 157, 167. Cf. Savage v. Jones, 225 U. S. 501, 533: “For when the question is whether a Federal act overrides a state law, the entire scheme of the statute must of course be considered and that which needs must be implied is of no less force than that which is expressed. If the purpose of the act cannot otherwise be accomplished — if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect — the state law must yield to the regulation of Congress within the sphere of its delegated power.” Express recognition of the breadth of the concurrent taxing powers of state and nation is found in Federalist paper No. 32. It is true that where the Constitution does not of itself prohibit state action, as in matters related to interstate commerce, and where the Congress, while regulating related matters, has purposely left untouched a distinctive part of a subject which is peculiarly adapted to local regulation, the state may legislate concerning such local matters which Congress could have covered but did not. Kelly v. Washington, 302 U. S. 1, 9, 10, 11, 12, 13, 14 (inspection for seaworthiness of hull and machinery of motor-driven tugs). And see Reid v. Colorado, 187 U. S. 137, 147 (prohibition on introduction of diseased cattle or horses); Savage v. Jones, 225 U. S. 501, 529, 532 (requirement that certain labels reveal package contents); Carey v. South Dakota, 250 U. S. 118, 121 (prohibition of shipment by carrier of wild ducks); Dickson v. Uhlmann Grain Co., 288 U. S. 188, 199 (prohibition of margin transactions in grain where there' is no intent to deliver); Mintz v. Baldwin, 289 U. S. 346, 350-352 (inspection of cattle for infectious diseases); Maurer v. Hamilton, 309 U. S. 598, 604, 614 (prohibition of car-over-cab trucking). As supporting the contention that the state can enforce its alien registration legislation, even though" }, { "docid": "22224321", "title": "", "text": "Ry. Co. v. Haber, 169 U. S. 613, 623, 624; Reid v. Colorado, 187 U. S. 137, 148; Crossman v. Lurman, 192 U. S. 189, 199, 200; Asbell v. Kansas, 209 U. S. 251, 257, 258; Missouri Pacific Ry. Co. v. Larabee Mills, 211 U. S. 612, 623; Savage v. Jones, 225 U. S. 501, 533; Atlantic Coast Line v. Georgia, 234 U. S. 280, 293, 294; Carey v. South Dakota, 250 U. S. 118, 122; Atchison, T. & S. P. Ry. Co. v. Railroad Commission, 283 U. S. 380, 392, 393; Mintz v. Baldwin, 289 U. S. 346, 350. Gilvary v. Cuyahoga Valley Ry. Co., supra. A few illustrations will suffice. In Reid v. Colorado, supra, the question arose with respect to a statute of Colorado aimed at the prevention of the introduction into the State of diseased animals. One who had been convicted of its violation contended that the subject of the transportation of cattle by one State to another had been so far covered by the federal statute, known as the Animal Industry Act (23 Stat. 31), that no enactment by .the State upon that subject was permissible. While the congressional act did deal with the subject of the driving or transporting of diseased livestock from one State into another, Congress had gone no further than to make it an offense against the United States for one knowingly to take or send from one State to another livestock affected with infectious or communicable disease. The Court concluded that the state statute, requiring a certificate that the cattle were free from disease, irrespective of the shipper’s knowledge of the actual condition of the cattle, did not cover the same ground as the Act of Congress and was not inconsistent with it. Id., pp. 149, 150. The principle was thus emphatically stated: “It should never be held that Congress intends to supersede or by its legislation suspend the exercise of the police powers of the States, even when it may do so, unless its purpose to effect that result is clearly manifested. This court has said— and the principle" }, { "docid": "22746151", "title": "", "text": "from the last war. The repeal of this legislation is not to be inferred from the silence of Congress in enacting a law which at no point conflicts with the state legislation and is harmonious with it. The exercise of the federal legislative power is certainly not more potent to curtail the exercise of state power over aliens than is the exercise of the treaty making power. Yet as we have seen no treaty has that effect unless it conflicts with a state statute. The passage of the National Pure Food & Drug Act did not preclude the states from supplementing it by like additional requirements not conflicting with those of the Congressional act. Savage v. Jones, 225 U. S. 501. The enactment of federal laws for the inspection, as a safety measure, of vessels plying navigable waters of the United States does not foreclose the states from like inspection of the hull and machinery of such vessels within the state, to insure safety and determine seaworthiness, demands which lie outside the federal requirements. Kelly v. Washington, supra. The passage of the National Draft and the National Espionage Acts with their penalties for violation, did not preclude a state from making it a misdemeanor for any person to advocate that citizens of the state refuse to aid or assist the United States in carrying on a war. Gilbert v. Minnesota, 254 U. S. 325; cf. Halter v. Nebraska, 204 U. S. 34; see also Reid v. Colorado, 187 U. S. 137; Carey v. South Dakota, 250 U. S. 118; Dickson v. Uhlmann Grain Co., 288 U. S. 188; Mintz v. Baldwin, 289 U. S. 346; Maurer v. Hamilton, 309 U. S. 598, 614. These are but a few of the many examples of the long established principle of constitutional interpretation that an exercise by the state of its police power, which would be valid if not superseded by federal action, is superseded only where the repugnance or conflict is so “direct and positive” that the two acts cannot “be fairly reconciled or consistently stand together.” Sinnot v. Davenport, 22 How." }, { "docid": "22337037", "title": "", "text": "Bank, 281 U. S. 449, 454. See 1 Blackstone, Commentaries 372; 2 Kent, Commentaries 61-63. See XXVI Journals of the Continental Congress 357, 360-361. See 2 Diplomatic Correspondence of the United States 1783-1789, at 111, 116-117. Despatch, Wheaton to Legare, June 14, 1843, 3 Despatches, Prussia, No. 226, MSS., Nat. Archives; see 4 Miller, Treaties and other International Acts of the United States of America 547-548 (1934). 4 Miller, supra, at 546, 548. Treaty of Nov. 25, 1850, with Switzerland, 11 Stat. 587, 590. See Diplomatic Correspondence of the United States, 1868, Pt. II, 194, 196-197; Foreign Relations of the United States, 1880, 952-953. See 4 Moore, Digest of International Law 6 (1906). The treaty was the Treaty of Dec. 18, 1832, with Russia, 8 Stat. 444. Bacardi Corp. v. Domenech, 311 U. S. 150, 163, citing Jordan v. Tashiro, 278 U. S. 123, 127; Nielsen v. Johnson, 279 U. S. 47, 52. See, e. g., Clarke v. Deckebach, 274 U. S. 392; Frick v. Webb, 263 U. S. 326; Webb v. O’Brien, 263 U. S. 313; Terrace v. Thompson, 263 U. S. 197; Heim v. McCall, 239 U. S. 175. Brief for Appellants 13. Thus, this case does not present the question whether a uniform denial of rights to nonresident aliens might be a denial of equal protection forbidden by the Fourteenth Amendment. Cf. Blake v. McClung, 172 U. S. 239, 260-261. The communication from the Bulgarian Government mentioned in the majority opinion in n. 7, ante, at 437, apparently refers not to intemperate comments by state-court judges but to the very existence of state statutes which result in the denial of inheritance rights to Bulgarians. Brief for the United States as amicus curiae 6, n. 5. Memorandum for the United States 5. See, e. g., Estate of Larkin, 65 Cal. 2d 60, 416 P. 2d 473. Uniform Foreign Money-Judgments Recognition Act §4 (a)(1), 9B Unif. Laws Ann. 67. See generally Schlesinger, Comparative Law 31-143 (2d ed. 1959). See Slater v. Mexican National R. Co., 194 U. S. 120, 129 (Holmes, J.); American Banana Co. v. United Fruit Co.," }, { "docid": "22061061", "title": "", "text": "its order, App. 93, excluded appellee Castro from the recognized class. That exclusion is not contested here. Brief for Appellants 17. Id., at 22. Id., at 23. Ibid. Id., at 13. In the past, the Court has invoked the special-public-interest doctrine to uphold statutes that, in the absence of overriding treaties, limit the right of noncitizens to exploit a State’s natural resources, McCready v. Virginia, 94 U. S. 391 (1877), Patsone v. Pennsylvania, 232 U. S. 138 (1914); to inherit real property, Hauenstein v. Lynham, 100 U. S. 483 (1880), Blythe v. Hinckley, 180 U. S. 333 (1901); and to acquire and own land, Terrace v. Thompson, 263 U. S. 197 (1923), Porterfield v. Webb, 263 U. S. 225 (1923), Webb v. O’Brien, 263 U. S. 313 (1923), Frick v. Webb, 263 U. S. 326 (1923); but see Oyama v. California, 332 U. S. 633 (1948). We are aware that citizenship requirements are imposed in certain aspects of the federal service. See 5 U. S. C. §3301; Exec. Order No. 10577, 19 Fed. Reg. 7521, §2.1 (1954); 5 CFR §§ 338.101, 302.203 (g) (1973); and, for example, Treasury, Postal Service, and General Government Appropriation Act, 1972, § 602, Pub. L. 92-49, 85 Stat. 122, and Public Works Appropriations Act, 1971, § 502, Pub. L. 91-439, 84 Stat. 902. In deciding the present case, we intimate no view as to whether these federal citizenship requirements are or are not susceptible of constitutional challenge. See Jalil v. Hampton, 148 U. S. App. D. C. 415, 460 F. 2d 923, cert. denied, 409 U. S. 887 (1972); Comment, Aliens and the Civil Service: A Closed Door?, 61 Geo. L. J. 207 (1972). In congressional debates leading to the adoption of the Fourteenth Amendment, there is clear evidence that Congress not only knew that as a matter of local practice aliens had not been granted the right to vote, but that under the amendment they did not receive a constitutional right of suffrage or a constitutional right to participate in the political process of state government, and that, indeed, the right to vote and" }, { "docid": "22828166", "title": "", "text": "“The Anti-Japanese Land Laws of California and Ten Other States,” 35 Calif. L. Rev. 7,16-17. McWilliams, Prejudice (1944), pp. 79-80. H. R. Rep. No. 2124, 77th Cong., 2d Sess., pp. 117-118. In 1941 the Japanese produced 90% or more of California’s snap beans for marketing, spring and summer celery, peppers and strawberries; 50% to 90% of the artichokes, snap beans for canning, cauliflower, fall and winter celery, cucumbers, fall peas, spinach and tomatoes; 25% to 50% of the asparagus, cabbage, cantaloupes, carrots, lettuce, onions, and watermelons. Id., p. 118. See McWilliams, Prejudice (1944), ch. III. Terrace v. Thompson, 263 U. S. 197; Porterfield v. Webb, 263 U. S. 225; Webb v. O’Brien, 263 U. S. 313; Frick v. Webb, 263 U. S. 326. On November 5, 1946, the voters of California rejected by 1,143,780 to 797,067 an attempt to “close loopholes in legislative enactments [the Alien Land Laws] based on constitutional grounds.” The rejected amendment validated various additions to the Alien Land Law which had been made by the legislature to prevent circumvention of that law. U. S. Dept. of Interior, W. R. A., People in Motion: The Postwar Adjustment of the Evacuated Japanese Americans (1947), pp. 41-45. Mr. Justice Reed, with whom Mr. Justice Burton joins, dissenting. The Court’s opinion assumes arguendo that the California Alien Land Laws are constitutional. As we read the opinion, it holds that the Alien Land Laws of California, as here applied, discriminate in an unconstitutional manner against an American citizen- — a son born in the United States to resident parents of Japanese nationality. From this holding we dissent. California, through an exercise of the police power, which. has been repeatedly approved by us, has prohibited ownership of land within the state by aliens ineligible for citizenship. Recognizing that the benefits flowing from ownership can be enjoyed through subter fuges by persons not the holders of legal or equitable title, California has proscribed as to the state every “conveyance . . . made with intent to prevent, evade or avoid escheat. . . .\" Transfers of real property made with this intent “shall" }, { "docid": "22746152", "title": "", "text": "v. Washington, supra. The passage of the National Draft and the National Espionage Acts with their penalties for violation, did not preclude a state from making it a misdemeanor for any person to advocate that citizens of the state refuse to aid or assist the United States in carrying on a war. Gilbert v. Minnesota, 254 U. S. 325; cf. Halter v. Nebraska, 204 U. S. 34; see also Reid v. Colorado, 187 U. S. 137; Carey v. South Dakota, 250 U. S. 118; Dickson v. Uhlmann Grain Co., 288 U. S. 188; Mintz v. Baldwin, 289 U. S. 346; Maurer v. Hamilton, 309 U. S. 598, 614. These are but a few of the many examples of the long established principle of constitutional interpretation that an exercise by the state of its police power, which would be valid if not superseded by federal action, is superseded only where the repugnance or conflict is so “direct and positive” that the two acts cannot “be fairly reconciled or consistently stand together.” Sinnot v. Davenport, 22 How. 227, 243; Kelly v. Washington, supra, 10. A federal registration act designed to aid in enforcing federal statutes and to prevent subversive activities against the national government can stand consistently with a like statute applicable to residents passed in aid of state laws-and as a safeguard to property and persons within the state, as readily as the federal and state laws which annually demand two separate income tax returns of the citizen. The Fourteenth Amendment guarantees the civil liberties of aliens as well as of citizens against infringement by state action in the enactment of laws and their administration as well. Again we are pointed to nothing in the Federal Alien Registration Act or in the records of its passage through Congress to indicate that Congress thought those guarantees inadequate or that in requiring registration of all aliens it undertook to prevent the states from passing any registration measure otherwise constitutional. True, it was careful to bring the new legislation into harmony with existing federal statutes and to avoid, so far as consistent with its" }, { "docid": "3379470", "title": "", "text": "Mr. Justice Butler delivered the opinion of the Court. Plaintiffs in error were convicted in the superior court of Sonoma County, California, of conspiracy to effect a transfer of real property in violation of the Alien Land Law of that State. Judgment was affirmed by the district court of appeal. 62 Cal. App. 22. A petition to have the case heard and determined in the Supreme Court of California was denied. The case is here on writ of error. § 237, Judicial Code. Under the Alien Land Law, Japanese subjects who are not eligible to citizenship under the laws of the United States are not permitted to acquire, use or control agricultural lands in California. Statutes of California, 1921, p, lxxxiii. Treaty of February 21, 1911, 37 Stat. 1504. Porterfield v. Webb, 263 U. S. 225; Webb v. O’Brien, 263 U. S. 313; Frick v. Webb, 263 U. S. 326; Terrace v. Thompson, 263 U. S. 197. Section 9 provides: “Every transfer of real property, or of an interest therein, though colorable in form, shall be void as to the state and the interest thereby conveyed or sought to be conveyed shall escheat to the state if the property interest involved is of such a character that an alien mentioned in section two hereof [one not eligible to citizenship under the laws of the United States] is inhibited from acquiring, possessing, enjoying or transferring it, and if the conveyance is made with intent to prevent, evade or avoid escheat as provided for herein. A prima facie presumption that the conveyance is made with such intent shall arise upon proof of . . . the taking of the property in the name of a person other than, the persons mentioned in section two hereof if the consideration is paid or agreed or understood to be paid by an alien mentioned ih section two hereof; . . Section 10 provides that, if two or more .persons conspire to effect a transfer of real property or of any interest therein in violation of the provisions of the statute, they shall be punishable by" }, { "docid": "22999896", "title": "", "text": "alien’s “right to work for a living in the common occupations of the community. ...” Id., at 41. At the same time, however, the Court also has recognized a greater degree of latitude for the States when aliens were sought to be excluded from public employment. At the time Truax was decided, the governing doctrine permitted States to exclude aliens from various activities when the restriction pertained to “the regulation or distribution of the public domain, or of the common property or resources of the people of the State . . . .” Id., at 39. Hence, as part of a larger authority to forbid aliens from owning land, Frick v. Webb, 263 U. S. 326 (1923); Webb v. O’Brien, 263 U. S. 313 (1923); Porterfield v. Webb, 263 U. S. 225 (1923); Terrace v. Thompson, 263 U. S. 197 (1923); Blythe v. Hinckley, 180 U. S. 333 (1901); Hauenstein v. Lynham, 100 U. S. 483 (1880); harvesting wildlife, Patsone v. Pennsylvania, 232 U. S. 138 (1914); McCready v. Virginia, 94 U. S. 391 (1877); or maintaining an inherently dangerous enterprise, Ohio ex rel. Clarke v. Deckebach, 274 U. S. 392 (1927), States permissibly could exclude aliens from working on public construction projects, Crane v. New York, 239 U. S. 195 (1915), and, it appears, from engaging in any form of public employment at all, see Truax, supra, at 40. Over time, the Court’s decisions gradually have restricted the activities from which States are free to exclude aliens. The first sign that the Court would question the constitutionality of discrimination against aliens even in areas affected with a “public interest” appeared in Oyama v. California, 332 U. S. 633 (1948). The Court there held that statutory presumptions designed to discourage evasion of California’s ban on alien landholding discriminated against the citizen children of aliens. The same Term, the Court held that the “ownership” a State exercises over fish found in its territorial waters “is inadequate to justify California in excluding any or all aliens who are lawful residents of the State from making a living by fishing in the ocean" }, { "docid": "22061069", "title": "", "text": "status of federal citizenship. See, e. g., Slaughter-House Cases, 16 Wall., at 79; United States v. Cruikshank, 92 U. S. 542 (1876); Ex parte Yarbrough, 110 U. S. 651 (1884); Crutcher v. Kentucky, 141 U. S. 47 (1891); Logan v. United States, 144 U. S. 263 (1892); In re Quarles, 158 U. S. 532 (1895). Cf. Crandall v. Nevada, 6 Wall. 35 (1868). Decisions of this Court holding that an alien is a “person” within the meaning of the Equal Protection Clause of the Fourteenth Amendment are simply irrelevant to the question of whether that Amendment prohibits legislative classifications based upon this particular status. Since that Amendment by its own terms first defined those who had the status as a lesser included class of all “persons,” the Court's failure to articulate why such classifications under the same Amendment are now forbidden serves only to illuminate the absence of any constitutional foundation for these instant decisions. This Court has held time and again that legislative classifications on the basis of citizenship were subject to the rational-basis test of equal protection, and that the justifications then advanced for the legislation were rational. See Clarke v. Deckebach, 274 U. S. 392 (1927); Terrace v. Thompson, 263 U. S. 197 (1923); Porterfield v. Webb, 263 U. S. 225 (1923); Webb v. O’Brien, 263 U. S. 313 (1923); Frick v. Webb, 263 U. S. 326 (1923); Patsone v. Pennsylvania, 232 U. S. 138 (1914); Blythe v. Hinckley, 180 U. S. 333 (1901); Hauenstein v. Lynham, 100 U. S. 483 (1880). This Court explicitly held that it was not a violation of the Equal Protection Clause for a State by statute to limit employment on public projects to citizens. Heim v. McCall, 239 U. S. 175 (1915); Crane v. New York, 239 U. S. 195 (1915). Even if the Court now considers that the justifications for those enactments are “not controlling,” those decisions clearly hold that the rational-basis test applies. To reject the methodological approach of these decisions, the Court now relies in part on the decisions in Truax v. Raich, 239 U. S. 33 (1915)," }, { "docid": "22061070", "title": "", "text": "test of equal protection, and that the justifications then advanced for the legislation were rational. See Clarke v. Deckebach, 274 U. S. 392 (1927); Terrace v. Thompson, 263 U. S. 197 (1923); Porterfield v. Webb, 263 U. S. 225 (1923); Webb v. O’Brien, 263 U. S. 313 (1923); Frick v. Webb, 263 U. S. 326 (1923); Patsone v. Pennsylvania, 232 U. S. 138 (1914); Blythe v. Hinckley, 180 U. S. 333 (1901); Hauenstein v. Lynham, 100 U. S. 483 (1880). This Court explicitly held that it was not a violation of the Equal Protection Clause for a State by statute to limit employment on public projects to citizens. Heim v. McCall, 239 U. S. 175 (1915); Crane v. New York, 239 U. S. 195 (1915). Even if the Court now considers that the justifications for those enactments are “not controlling,” those decisions clearly hold that the rational-basis test applies. To reject the methodological approach of these decisions, the Court now relies in part on the decisions in Truax v. Raich, 239 U. S. 33 (1915), and Takahashi v. Fish Comm’n, 334 U. S. 410 (1948). In Truax, supra, the Court invalidated a state statute which prohibited employers of more than five persons from employing more than 20% noncitizens. The law was applicable to all businesses. In holding that the law was invalid under the Equal Protection Clause, the Court took pains to explain that the decision was not meant to disturb prior holdings, 239 U. S., at 39, and specifically noted that “it should be added that the act is not limited to persons who are engaged on public work or receive the benefit of public moneys.” Id., at 40. Indeed, Heim and Crane were decided after Truax, as was Clarke, which held that a State could constitutionally prohibit aliens from engaging in certain types of businesses. If anything, Truax was limited by these later decisions. Takahashi, supra, involved a statute which prohibited aliens “ineligible for citizenship” under federal law from receiving commercial fishing licenses. A State whose classification on the basis of race would have been legitimately “suspect” under" }, { "docid": "22828111", "title": "", "text": "name of their seven-year-old children — thereby putting it beyond the power of the parents to deal with it directly, to deed it away, to borrow money on it and to make free disposition of it. This conclusion was based in large measure on a series of cases decided within a week of each other in 1923: Terrace v. Thompson, 263 U. S. 197; Porterfield v. Webb, 263 U. S. 225; Webb v. O’Brien, 263 U. S. 313; and Frick v. Webb, 263 U. S. 326. “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” R. S. § 1978, 8 U. S. C. § 42. The State in its brief concedes that this is so. See also Estate of Yano, 188 Cal. 645, 649, 206 Pac. 995, 998 (1922); People v. Fujita, 215 Cal. 166, 169, 8 P. 2d 1011, 1012 (1932). The State also concedes the accuracy of this proposition. See also People v. Fujita, supra note 14. A statute of general applicability requires that parents be given preference in the appointment of a minor’s guardian. Cal. Prob. Code Ann. § 1407. Section 4 of the Alien Land Law, as enacted in 1920, prohibited an ineligible alien from becoming the guardian of that part of his child’s estate which consisted of agricultural land. Cal. Stats. 1921, p. Ixxxiii. This section was held unconstitutional in Estate of Yano, supra note 14. See DeGreayer v. Superior Court, 117 Cal. 640, 49 Pac. 983 (1897). Gomez v. Cecena, 15 Cal. 2d 363, 101 P. 2d 477 (1940); Quinn v. Reilly, 198 Cal. 465, 245 Pac. 1091 (1926); Russ v. Mebius, 16 Cal. 350 (1860); cf. Lezinsky v. Mason Malt Whiskey Distilling Co., 185 Cal. 240, 250, 196 Pac. 884, 889 (1921); Hamilton v. Hubbard, 134 Cal. 603, 605, 65 Pac. 321, 322 (1901). People v. Fufita, 215 Cal. 166, 169, 8 P.2d 1011, 1012 (1932); Estate of Yano, 188 Cal. 645, 649, 206 Pac. 995, 998" } ]

[ { "docid": "23396575", "title": "", "text": "or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any • false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both. . Compare the result achieved by the materiality standard in 18 U.S.C. § 1001 with the False Claims Act, 31 U.S.C. § 231, which prohibits “obtaining . . . the payment . . . of any false or fraudulent claim with intent to defraud the United States.” “False,” as used in the False Claims Act, unquestionably means more than “untrue,” despite the use of the disjunctive “false or fraudulent,” because of the addition of the phrase “with intent to defraud.” See also 18 U.S.C. § 287, prescribing a felony for making or presenting “to any person or officer in the civil, military, or naval service of the United States, . . . any claim upon or against the United States, . . . knowing such claim to be false, fictitious, or fraudulent.” Unlike 18 U.S.C. § 1001, this provision makes no reference to “material fact.” Nevertheless, “materiality” has been required as an element of the offense in the same manner as under section 1001. “The very purpose of sections 287 and 1001 is to protect the government against those who would cheat or mislead it in the administration of its programs.” United States v. Johnson, 284 F.Supp. 273, 278 (W.D.Mo.1968), aff’d, 410 F.2d 38 (8th Cir.), cert. denied, 396 U.S. 822, 90 S.Ct. 63, 24 L.Ed.2d 72 (1969). Implicit within the utilization of the materiality standard under 287 and 1001 is the notion that the criminal intent necessary under the statute includes not only an intention to make the statement but also an intention to deceive or mislead the person or agency to whom it is proffered. . Two widely used texts support this conclusion. At 35 C.J.S. p. 614 it is said: In the more important uses [of “false”] in jurisprudence, and even in its" } ]

[ { "docid": "2632001", "title": "", "text": "the District Judge first read the language of this provision, which provides that whoever “knowingly and willfully falsifies, conceals or covers up by any trick, scheme or devise a material fact” shall be guilty of this offense. However, the District Judge did not identify materiality as an element and listed only the following four as “essential elements” of the section 1001 offense: that defendant (1) knowingly and willfully (2) made a statement, (3) which was false, and (4) which was within the jurisdiction of an agency of the United States. Indeed, during a post-trial hearing on this very issue, the Judge acknowledged that he “did not require the jury to find that the alleged false statement was material” because he had followed then-controlling Second Circuit law in this matter. See United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir.1984) (materiality not element of section 1001 offense). After an independent review of the jury instructions, we agree with the District Judge that he did not charge materiality as an element of the section 1001 count. In United States v. Gaudin, — U.S. -, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), decided after Ballistrea’s trial, the Supreme Court held that materiality, if an element of the section 1001 offense, must be submitted to the jury. Because the Government in Gau-din conceded that materiality was an element of section 1001, the Court did not directly consider this question. In United States v. Ali, 68 F.3d 1468, 1474-75 (2d Cir.1995), this Circuit explicitly read Gaudin as holding that materiality is an element of the section 1001 offense and repudiated our earlier decision in Elkin. If the jury charge given .by the District Judge in Ballistrea’s case were given today, therefore, it would be erroneous under the law of this Circuit. Because defendant did not timely object to the section 1001 charge, this Court can reverse only for “plain error.” Fed. R.Crim.P. 52(b). In United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993), the Supreme Court interpreted Rule 52(b) as creating three distinct hurdles for appellate review." }, { "docid": "5213887", "title": "", "text": "and Second Circuits have held that § 287 does not require proof of the materiality of the false statement. See United States v. Upton, 91 F.3d 677, 685 (5th Cir.1996); United States v. Taylor, 66 F.3d 254, 255 (9th Cir.1995); United States v. Parsons, 967 F.2d 452, 455 (10th Cir.1992); United States v. Elkin, 731 F.2d 1005, 1009-10 (2d Cir.1984), overruled on other grounds by United States v. Ali, 68 F.3d 1468 (2d Cir.1995). Finally, the Third Circuit has split the difference and concluded that materiality sometimes is, and sometimes is not, an element under § 287. See United States v. Saybolt, 577 F.3d 195, 200 (3d Cir.2009). This case does not require us to express a view as to whether materiality is an element under 18 U.S.C. § 287. This is because Parisi’s claim cannot succeed either way. As we have noted in other statutory contexts, a statement need not actually deceive to qualify as “material.” Rather, “materiality requires only that the fraud in question have a natural tendency to influence, or be capable of affecting or influencing, a government function. The alleged concealment or misrepresentation need not have influenced the actions of the Government agency, and the Government agents need not have been actually deceived.” United States v. Corsino, 812 F.2d 26, 30 (1st Cir.1987) (citing United States v. Markham, 537 F.2d 187, 196 (5th Cir.1976)); see also United States v. Moran, 393 F.3d 1, 13 (1st Cir.2004). It is thus clear that Parisi’s claims would be unavailing even were we to read materiality into § 287. The forms Parisi submitted were expressly designed to cause the SAMHSA administrators to pay on claims that were not authorized by the terms of the SAMHSA grant. Although the 270 form at issue in count twelve was returned to Parisi because it was improperly formatted, it contained the substance of the relevant false claims, which substance was re-submitted several days later in the correct format. As our precedent on materiality makes clear, that SAMHSA administrators were not ultimately deceived into paying out on the fraudulent claims at issue in counts 12-15" }, { "docid": "11592641", "title": "", "text": "83 L.Ed.2d 43 (1984). In making our own determination of whether materiality is an element' of § 287, we look to the plain language of the statute. Section 287 states: Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or .to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years and shall be subject to a fine in the amount provided in this title. 18 U.S.C. § 287 (Supp.1995). The plain language of this provision in no way suggests that materiality is an element of the offense. “When we find the terms of a statute unambiguous, judicial inquiry is complete except in rare and exceptional circumstances.” Demarest v. Manspeaker, 498 U.S. 184, 190, 111 S.Ct. 599, 604, 112 L.Ed.2d 608 (1991) (citations omitted). The plain language of a statute must be followed unless the language is “so bizarre that Congress could not have intended it.” Id. at 191, 111 S.Ct. at 604. We therefore agree with our sister Circuits’ decisions in Taylor, 66 F.3d at 255, Parsons, 967 F.2d at 455, and Elkin, 731 F.2d at 1009, and hold that materiality is not an element of 18 U.S.C. § 287. Accord United States v. Irwin, 654 F.2d 671, 682 (10th Cir.1981) (the legislative history of § 287 does not indicate that Congress intended to make materiality an element of the statute), cert. denied, 455 U.S. 1016, 102 S.Ct. 1709, 72 L.Ed.2d 133 (1982). Because we hold that materiality is not an element of § 287, Barrick’s argument that the district court committed error by not submitting the question of materiality to the jury fails. D. Materiality as an Element of 18 U.S.C. § 1001 The jury found Barrick guilty of counts five, six, and seven for making false statements in violation of 18 U.S.C. § 1001. Prior to Ray v. United States, 481 U.S. 736, 737, 107 S.Ct. 2093, 2093-94, 95 L.Ed.2d" }, { "docid": "13212142", "title": "", "text": "everyone” who filed for DUA benefits sufficed to sustain Atalig’s conspiracy conviction as well. See 18 U.S.C. § 371. AFFIRMED. . Section 287 provides that \"[w]hoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years.” . Section 1001(a) makes criminal the acts of any person who, \"in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully ... makes any materially false, fictitious, or fraudulent statement or representation.” . In a separately-filed Memorandum disposition we address the other issues raised by Atalig on appeal. . The Robert T.. Stafford Disaster Relief and Emergency Assistance Act authorizes the President to declare a “major disaster” when “the disaster is of such severity and magnitude that effective response is beyond the capabilities of the State and the affected local governments and that Federal assistance is necessary.” 42 U.S.C. § 5170. . Two of this court's post-1996 published opinions fail to note the effect of the 1996 amendment to § 1001 on prior case law. See United States v. Jiang, 476 F.3d 1026 (9th Cir.2007); Camper, 384 F.3d 1073. Neither of these cases, however, had reason to address whether the “agency jurisdiction” requirement survives those amendments. See Jiang, 476 F.3d at 1031 (concluding that there was insufficient evidence to prove that the defendant knowingly made a false statement); Camper, 384 F.3d at 1075 (stating that the defendant contested only the falsity element)." }, { "docid": "23544754", "title": "", "text": "support a conviction, this Court, while reviewing the record in the light most favorable to the prosecution, should grant relief only if it is found that upon the record evidence adduced at trial, no rational trier of fact could have found proof of guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 1. False Claims Convictions On appeal, Appellants argue that the evidence presented at trial was insufficient to support their convictions for making, or causing to be made, false HUD/ FHA loan insurance claims under 18 U.S.C. § 287. Appellants contend that the false claims counts were based upon submission of either a Verification of Employment form (“VOE”) or a Verification of Deposit form (“VOD”), neither of which satisfies the materiality requirement present in the false claims statute. Thus, Appellants argue that these forms, even if false, did not render the claims “false” within the meaning of the statute because the required element of materiality remains unsatisfied. This Circuit first addressed the particular issue of whether materiality is an element of a false claims offense in United States v. Nash, 175 F.3d 429, 433-34 (6th Cir.1999). As in this case, the appellant in Nash argued that materiality is an element of this offense, and that because the government failed to prove that his statements were material, no rational trier of fact could find him guilty beyond a reasonable doubt of making false statements. Id. at 433. In determining whether materiality was an element of the false claims statute in Nash, this Court first looked to the plain language of 18 U.S.C. § 287. That language provides: Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years and shall be subject to a fine in the amount provided in this title." }, { "docid": "18688680", "title": "", "text": "Materiality is an element under section 1001, United States v. Beer, 518 F.2d 168, 170-71 (5th Cir.1975); however, we have never held that materiality is an element under section 287. We have previously touched upon this issue only once. In United States v. Haynie, 568 F.2d 1091, 1092 (5th Cir.1978) (per curiam ), we observed that “the issue of whether materiality is an element of a section 287 charge has not been squarely presented to and decided by this court.” Without holding that materiality is an element of a section 287 offense, we concluded that if materiality is a required element, “the issue is one for the trial judge to handle as a question of law.” Id. Because the district court had correctly found that the misrepresentations in that case were material, we affirmed Haynie’s conviction under section 287 without determining whether materiality is an element under that section. Id. The four circuits that have addressed the issue of whether materiality is an element of a section 287 offense are evenly split. Compare United States v. Pruitt, 702 F.2d 152, 155 (8th Cir. 1983) (holding that materiality is an essential element of a section 287 charge) and United States v. Snider, 502 F.2d 645, 652 n. 12 (4th Cir.1974) (same) with United States v. Parsons, 967 F.2d 452, 455 (10th Cir.1992) (“[M]ateriality is not an element required by 18 U.S.C. § 287”) and United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir.) (“Since the language of § 287 in no way suggests that materiality is an element of the offense, we conclude that proof of materiality was not required.”), cert. denied, 469 U.S. 822, 105 S.Ct. 97, 83 L.Ed.2d 43 (1984). We need not align ourselves on either side of this intercircuit split, because the present ease is controlled by our own Haynie decision. Here, as in Haynie, because the misrepresentations were material, it does not matter whether materiality is an element of a section 287 charge. The district court realized that it should not have submitted the question of materiality to the jury. Although it withdrew the issue" }, { "docid": "12361245", "title": "", "text": "§ 287, because he sent a governmental agency, the IRS, a bad check to cover the outstanding tax liability of Kefalos. Section 287 provides in pertinent part as follows: Whoever makes or presents to any ... department or agency ... any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years and shall be subject to a fine.... The word “claim” is not defined in the statute. Typical § 287 cases in this circuit have involved the filing of a false tax return seeking an unjustified tax refund, see, e.g., United States v. Nash, 175 F.3d 429 (6th Cir.1999), or the filing of a fraudulent claim for Medicare reimbursement for services that were never rendered, see, e.g., United States v. Campbell, 845 F.2d 1374 (6th Cir.1988). In both of these situations the defendant is using fraudulent means to secure an unjustified monetary payment from the government. McBride, on the other hand, convincingly argues that he cannot fall within the ambit of this statutory provision because, by sending the IRS a bad check for Kefalos’s outstanding tax obligation, he could not possibly have obtained any money, property, credit, or reimbursement from the government in return. The government devotes only three sentences to McBride’s contention in its brief. Its position is essentially that “the presentation of the claim, in this case the bad check, with the knowledge that it is false, ... comprises the offense.” But no authority was cited to support its contention, and we have found none. One of the citations that the government did provide on this issue actually confirms the plain-meaning understanding of § 287, which does not cover McBride’s conduct. See United States v. Miller, 545 F.2d 1204, 1212 n. 10 (9th Cir.1976) (observing that the filing of a false tax return pursuant to a scheme to obtain an unjustified tax refund constitutes a false claim under § 287) (citation omitted). Another case relied upon by the government is United States v. Jackson, 845 F.2d 880 (9th" }, { "docid": "23116828", "title": "", "text": "district- court’s jury instructions for plain error, we look to the law — all of the law — as it now exists on appeal. After Gaudin, we assume that the district court erred in failing to submit materiality — long considered an element of § 1344 — to the jury. However, in light of Wells, the plainness of that error is suspect. As we noted in Calverley, “‘plain’ errors are errors which are ‘obvious,’ ‘clear,’ or ‘readily apparent;’ they are errors which are so conspicuous that ‘the trial judge and prosecutor were derelict in countenancing [them], even absent the defendant’s timely assistance in detecting [them].’ ” Calverley, 37 F.3d at 163 (citations omitted). Wells’ rejection of materiality as an element of a § 1014 offense casts doubt on this circuit’s holding that materiality is an element of § 1344 violations and, therefore, renders the claimed error unclear. The decisions in Gaudin and Wells have prompted this court and others to revisit implied materiality requirements in various statutes. For example, in United States v. Harvard, 103 F.3d 412, 418 (5th Cir.1997), we concluded that materiality is not an element of 18 U.S.C. § 1005. Likewise, the Eleventh Circuit held that Wells operated to overrule its decisions requiring materiality for § 1010 violations. United States v. De Castro, 113 F.3d 176 (11th Cir.1997); see also United States v. Upton, 91 F.3d 677, 685 (5th Cir.1996) (holding that materiality is not an element of § 287 offense), cert. denied, — U.S. -, 117 S.Ct. 1818, 137 L.Ed.2d 1027 (1997). But see United States v. Shunk, 113 F.3d 31, 34 (5th Cir.1997) (declining to reexamine whether materiality is element of § 1006 offense). As these cases demonstrate, whether materiality is properly considered an element of § 1344 after Wells, when it is not expressly required by statute, is unsettled. Any error committed by the court in withholding materiality from the jury was therefore not plain or obvious. Because the court’s error is not obvious after Wells, we cannot say that the district court committed plain error in failing to submit materiality to the jury" }, { "docid": "3175013", "title": "", "text": "recently reiterated, “a claim that a conviction is based on a record lacking any evidence relevant to crucial elements of the offense is a claim with serious constitutional overtones,” Anderson v. United States, 417 U.S. 211, 223, 94 S.Ct, 2253, 2261-2262 n. 12, 41 L.Ed.2d 21 (1974), and we believe, as did the Court in Anderson, that the “interests of justice” require its consideration here. In any event, the defendant, in reliance upon Anderson, could apparently raise the claim in a petition for certiorari to this court. We believe that our consideration of the issue at this point would possibly avoid a later remand. Finally, we are concerned that our failure to comment on the issue might be construed as approval of the district court’s rationale for its disposition of the case. . 18 U.S.C. § 287 provides: Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be fined not more than $10,000 or imprisoned not more than five years, or both. . One contract ran between Blue Shield and the Department of Health, Education and Welfare. The other contract ran between Travelers and the Railroad Retirement Board. . The Reviser’s Note to § 6 states that “[i]t was considered necessary to define clearly these words [“department” and “agency”] in order to avoid possible litigation as to the scope or coverage of a given section containing such words.” The district court relied in part upon United States v. Waters, 457 F.2d 805 (3d Cir. 1972). That case, however, was concerned with the provision of 18 U.S.C. § 1001, referring to “any matter within the jurisdiction of a department or agency of the United States.” That statutory language . is broader on its face than the language of § 287. The district court also relied upon United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379," }, { "docid": "5443359", "title": "", "text": "States District Court for the Western District of Missouri. . 18 U.S.C. § 1001 provides: § 1001. Statements or entries generally Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both. . 18 U.S.C. § 287 provides: § 287. False, fictitious or fraudulent claims Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be fined not more than $10,000 or imprisoned not more than five years, or both. . Moreover, the court instructed the jury specifically that there was no regulation specifying how the claim forms should be filled out. The claim forms used by appellant to bill for services were printed with instructions that telephone consultations would not be compensa-ble. The court also instructed the jury, “Completion of any of the claim forms in a manner which you may find to have been inconsistent with any instruction on the back of such forms does not, standing alone, establish that the defendant acted with criminal intent.” The trial court’s instructions were responsive to appellant’s theory of the case. . Neither appellant nor the government distinguishes between 18 U.S.C. § 1001 and 18 U.S.C. § 287 as far as the requirement of a showing that the false claim or false statement involved ís material. Accordingly, we treat materiality as an essential element of both statutes. We see no reason to treat the statutes differently. . Appellant also appears to contend that the indictment is defective on counts fourteen" }, { "docid": "11592639", "title": "", "text": "18 U.S.C. § 1001, also applies to § 287. Barrick argues that the district court committed plain error by failing to submit the question of materiality under § 287 to the jury. This court has not expressly addressed whether materiality is an element of § 287. See United States v. Haynie, 568 F.2d 1091, 1092 (5th Cir.1978) (“[T]he issue of whether materiality is an element of a section 287 charge has not been squarely presented to and decided by this court.”). In Haynie, we concluded without deciding that, if materiality is an element of § 287, “the issue is one for the trial judge to handle as a question of law.” id.; and see United States v. White, 27 F.3d 1531, 1534 (11th Cir.1994) (quoting same) (holding that it is unnecessary to determine whether materiality is an element under § 287 because the forged signatures are material as a matter of law). After Gaudin, materiality is considered a question of fact for the jury to decide. Gaudin, — U.S. at-, 115 S.Ct. at 2313-2320. Therefore, first we must determine whether materiality is an element of § 287 and, if so, we must then ascertain whether the district court committed plain error by failing to submit the question of materiality to the jury. Four Circuit Courts have addressed this issue reaching two different conclusions. Compare United States v. Wells, 63 F.3d 745, 750 (8th Cir.1995) (holding that materiality is an essential element of a § 287 charge), cert. granted, — U.S.-, 116 S.Ct. 1540, 134 L.Ed.2d 645 (1996), and United States v. Snider, 502 F.2d 645, 652 n. 12 (4th Cir.1974) (same) with United States v. Taylor, 66 F.3d 254, 255 (9th Cir.1995) (holding that while § 1001 expressly makes materiality an element of the offense, § 287 does not and Gaudin does not apply to a § 287 conviction), United States v. Parsons, 967 F.2d 452, 455 (10th Cir.1992) (holding that materiality is not an element required by § 287) and United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir.1984) (same), cert. denied, 469 U.S. 822, 105 S.Ct. 97," }, { "docid": "11592640", "title": "", "text": "first we must determine whether materiality is an element of § 287 and, if so, we must then ascertain whether the district court committed plain error by failing to submit the question of materiality to the jury. Four Circuit Courts have addressed this issue reaching two different conclusions. Compare United States v. Wells, 63 F.3d 745, 750 (8th Cir.1995) (holding that materiality is an essential element of a § 287 charge), cert. granted, — U.S.-, 116 S.Ct. 1540, 134 L.Ed.2d 645 (1996), and United States v. Snider, 502 F.2d 645, 652 n. 12 (4th Cir.1974) (same) with United States v. Taylor, 66 F.3d 254, 255 (9th Cir.1995) (holding that while § 1001 expressly makes materiality an element of the offense, § 287 does not and Gaudin does not apply to a § 287 conviction), United States v. Parsons, 967 F.2d 452, 455 (10th Cir.1992) (holding that materiality is not an element required by § 287) and United States v. Elkin, 731 F.2d 1005, 1009 (2d Cir.1984) (same), cert. denied, 469 U.S. 822, 105 S.Ct. 97, 83 L.Ed.2d 43 (1984). In making our own determination of whether materiality is an element' of § 287, we look to the plain language of the statute. Section 287 states: Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or .to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years and shall be subject to a fine in the amount provided in this title. 18 U.S.C. § 287 (Supp.1995). The plain language of this provision in no way suggests that materiality is an element of the offense. “When we find the terms of a statute unambiguous, judicial inquiry is complete except in rare and exceptional circumstances.” Demarest v. Manspeaker, 498 U.S. 184, 190, 111 S.Ct. 599, 604, 112 L.Ed.2d 608 (1991) (citations omitted). The plain language of a statute must be followed unless the language is “so" }, { "docid": "12812574", "title": "", "text": "some overt act or specific act in the statute before us, unlike the general conspiracy provision”). Section 286, like the RICO conspiracy provision, does not require an overt act. . That statutory provision directs that: \"Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years and shall be subject to a fine in the amount provided in this title.” 18 U.S.C. § 287. . The circuits, however, do not have unanimous agreement as to the appropriate standard. For instance, the Ninth Circuit sets quite a high standard and states that “[t]o be false, a claim must not only be inaccurate but consciously so.\" United States v. Barker, 967 F.2d 1275, 1278 (9th Cir.1991). In contrast, the Eighth Circuit has used the seemingly lesser standard of whether the defendant had the “intent to deceive.” United States v. Martin, 772 F.2d 1442, 1444 (8th Cir.1985). . Dedman, however, may have had grounds for claiming that the second count of the indictment was duplicitous. A duplicitous indictment is one that charges separate offenses in a single count. The overall vice of duplicity is that the jury cannot in a general verdict render its finding on each offense, making it difficult to determine whether a conviction rests on only one of the offenses or on both. Adverse effects on a defendant may include improper notice of the charges against him, prejudice in the shaping of evidentiary rulings, in sentencing, in limiting review on appeal, in exposure to double jeopardy, and of course the danger that a conviction will result from a less than unanimous verdict as to each separate offense. Duncan, 850 F.2d at 1108 n. 4. We held in 1993 that \" 'Congress, in enumerating several different types of fraudulent conduct in Section 1001, did not create separate and distinct offenses,' \" United States v." }, { "docid": "23544755", "title": "", "text": "issue of whether materiality is an element of a false claims offense in United States v. Nash, 175 F.3d 429, 433-34 (6th Cir.1999). As in this case, the appellant in Nash argued that materiality is an element of this offense, and that because the government failed to prove that his statements were material, no rational trier of fact could find him guilty beyond a reasonable doubt of making false statements. Id. at 433. In determining whether materiality was an element of the false claims statute in Nash, this Court first looked to the plain language of 18 U.S.C. § 287. That language provides: Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years and shall be subject to a fine in the amount provided in this title. Id. Based upon that section, this Court noted that the plain language neither mentions materiality nor in any way implies that the claim must be material. Nash, 175 F.3d at 434. Furthermore, we recognized that: (1) reading materiality into the statute would make surplusage of Congress’s explicit use of the term in other statutes; (2) the legislative history of § 287 does not indicate that Congress intended to make materiality a necessary element of the statute; and (3) the requirement of materiality “would set up an incongruous ‘heads I win, tails you lose’ dichotomy.” Id. This being the case, we made clear in Nash that the Sixth Circuit joined the Second, Fifth, Ninth, and Tenth Circuits in finding that materiality is not an element of 18 U.S.C. § 287. Id. On this basis alone, we find Appellants’ argument concerning insufficiency of the evidence as to the false claims convictions to be entirely without merit. Under the law of this Circuit, materiality is not an element of an offense arising under 18 U.S.C. § 287. Moreover," }, { "docid": "23619536", "title": "", "text": "false statement in violation of § 1001. United States v. Rinaldi, 393 F.2d 97, 99-100 (2d Cir.), cert. denied, 393 U.S. 913, 89 S.Ct. 233, 21 L.Ed.2d 198 (1968); United States v. Aadal, 368 F.2d 962, 964 (2d Cir.1966), cert. denied, 386 U.S. 970, 87 S.Ct. 1161, 18 L.Ed.2d 130 (1967); see United States v. Silva, 715 F.2d 43, 49-50 (2d Cir.1983). Moreover, courts that have considered materiality to be an element of an offense charged under § 1001 have ruled that the question is one of law to be decided by the court, not one of fact for the jury. E.g., United States v. Beer, 518 F.2d 168, 170-71 (5th Cir.1975). Accordingly, we see no error in the trial court’s refusal to submit to the jury the question of whether defendants’ misrepresentations were material. 2. Section 287 Section 287 of 18 U.S.C. makes it unlawful to present to any department or agency of the military service of the United States “any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious or fraudulent.” Although this Court has not previously decided whether materiality is an element of a violation of § 287, we have held that the similar language of 18 U.S.C. § 80 (1934), a precursor to § 287, did not require a finding that the falsity in the claim was material. See United States v. Presser, 99 F.2d 819, 822 (2d Cir.1938). Since the language of § 287 in no way suggests that materiality is an element of the offense, we conclude that proof of materiality was not required. Accord United States v. Irwin, 654 F.2d 671, 682 (10th Cir.1981) (legislative history of § 287 does not indicate that Congress intended that materiality be an element), cert. denied, 455 U.S. 1016, 102 S.Ct. 1709, 72 L.Ed.2d 133 (1982); but see United States v. Adler, 623 F.2d 1287, 1291 n. 5 (8th Cir.1980) (requiring proof of materiali ty); United States v. Snider, 502 F.2d 645, 652 n. 12 (4th Cir.1974) (same). Even were we to conclude, however, that materiality" }, { "docid": "17981094", "title": "", "text": "will towards the Government, and the knowledge of the action itself. Although we think that “ill will” may be inferred if the volitional action of presenting the claim and the element of knowledge of falsity (both express requirements for all grounds of liability under the Act) are proved by the Government (Fleming v. United States, 336 F.2d at 479), we do not require that an “ill will” or a specific intent are necessary elements for actionable liability under the Act. The real issue is whether the claimants knew they were submitting false claims. To answer this issue of “knowledge,” it is necessary to determine what “knowing” means under the False Claims Act. First of all, the False Claims Act, a civil statute according to the Code itself, has its counterpart in the criminal code. “Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be fined not more than $10,000 or im- • prisoned not more than five years or both.” 18 U.S.C. § 287. “Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years or both.” 18 U.S.C. § 1001. In defining “knowing” under 18 U.S.C. § 287, the criminal statute, the rules of “scienter” for the criminal mens rea should apply. See Perkins, supra, at 771-779, for a discussion of scienter. Since this case is brought as a civil action and since the discussion below concludes that the False Claims Act is civil in nature, there is no" }, { "docid": "5213886", "title": "", "text": "was convicted of counts 12-15, which assert that Parisi filed fraudulent claims for reimbursement to SAMHSA officials in the fiscal year ending on September 30, 2005, in violation of 18 U.S.C. § 287. Parisi challenges his convictions on these counts because he claims that the government failed to prove that the forms at issue were material. They were not material, Parisi claims, because one of them — the form underlying count 12 — was returned to him “because it was not in a format in which [HHS] was willing to review it,” and because the government did not pay the claims listed on the forms underlying counts 13-15. The plain language of § 287 makes no mention of materiality as an element of the offense. Parisi argues that we should nevertheless read materiality into the statute, as the Eighth and Fourth Circuits have done. See United States v. Adler, 623 F.2d 1287, 1291 n. 5 (8th Cir.1980); United States v. Snider, 502 F.2d 645, 652 n. 12 (4th Cir.1974). In contrast, the Fifth, Ninth, Tenth and Second Circuits have held that § 287 does not require proof of the materiality of the false statement. See United States v. Upton, 91 F.3d 677, 685 (5th Cir.1996); United States v. Taylor, 66 F.3d 254, 255 (9th Cir.1995); United States v. Parsons, 967 F.2d 452, 455 (10th Cir.1992); United States v. Elkin, 731 F.2d 1005, 1009-10 (2d Cir.1984), overruled on other grounds by United States v. Ali, 68 F.3d 1468 (2d Cir.1995). Finally, the Third Circuit has split the difference and concluded that materiality sometimes is, and sometimes is not, an element under § 287. See United States v. Saybolt, 577 F.3d 195, 200 (3d Cir.2009). This case does not require us to express a view as to whether materiality is an element under 18 U.S.C. § 287. This is because Parisi’s claim cannot succeed either way. As we have noted in other statutory contexts, a statement need not actually deceive to qualify as “material.” Rather, “materiality requires only that the fraud in question have a natural tendency to influence, or be capable" }, { "docid": "5443358", "title": "", "text": "however, is that the question of the materiality of an allegedly false statement or representation in the context of a 18 U.S.C. § 1001 prosecution is one of law. United States v. Hicks, 619 F.2d 752, at 758 (8th Cir. 1980), citing United States v. Jones, supra, 464 F.2d at 1124; accord, United States v. Schaffer, 600 F.2d 1120, 1123 (5th Cir. 1979). But cf. United States v. Valdez, 594 F.2d 725, 729 (9th Cir. 1979) (materiality is a question for the jury, but on the record in the case failure to submit the question to the jury was harmless error); United States v. Voorhees, supra, 593 F.2d at 349 (approving instruction that left question of materiality to the jury); United States v. Johnson, supra, 410 F.2d at 46 (materiality submitted to jury in 18 U.S.C. § 287 prosecution; see note 5 supra ). We have reviewed appellant’s other contentions and find them to be without merit. Accordingly, the judgment of the trial court is affirmed. . The Honorable John W. Oliver, Chief Judge, United States District Court for the Western District of Missouri. . 18 U.S.C. § 1001 provides: § 1001. Statements or entries generally Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both. . 18 U.S.C. § 287 provides: § 287. False, fictitious or fraudulent claims Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be fined not more than $10,000 or imprisoned not" }, { "docid": "12812573", "title": "", "text": "degrees of relationship by consanguinity.” Id. . We recognize that some of the rationales used to defend such laws have come under fire recently. For a general discussion of potential problems with laws that restrict relationships between consenting adults, even those that are related, see Note, Inbred Obscurity: Improving Incest Laws in the Shadow of the “Sexual Family,” 119 Harv. L.Rev. 2464 (2006). . The government does not need to prove an overt act under 18 U.S.C. § 286. Although an overt act is required under the general conspiracy statute, 18 U.S.C. § 371, the language of that statute specifically requires that \"one or more of such persons do any act to effect the object of the conspiracy.” 18 U.S.C. § 371. In contrast, when a statute does not require an overt act, we do not read that requirement into the statute. See Salinas v. United States, 522 U.S. 52, 63, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997) (holding there is no overt-act requirement for the RICO conspiracy statute because \"[t]here is no requirement of some overt act or specific act in the statute before us, unlike the general conspiracy provision”). Section 286, like the RICO conspiracy provision, does not require an overt act. . That statutory provision directs that: \"Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years and shall be subject to a fine in the amount provided in this title.” 18 U.S.C. § 287. . The circuits, however, do not have unanimous agreement as to the appropriate standard. For instance, the Ninth Circuit sets quite a high standard and states that “[t]o be false, a claim must not only be inaccurate but consciously so.\" United States v. Barker, 967 F.2d 1275, 1278 (9th Cir.1991). In contrast, the Eighth Circuit has used the seemingly lesser standard of whether the" }, { "docid": "18928825", "title": "", "text": "This single definition replaces the Court’s former approach in which materiality differed according to the nature of a defendant’s Brady request. Even under the present definition of materiality, the specificity of a defendant’s request remains significant. As specificity increases, a lesser showing of materiality will suffice. Id. Conversely, as a defendant’s request becomes more general, a greater showing of materiality is required. Id. Defendant’s request, while not document specific, is more narrow than a general request. See United States v. Agurs, 427 U.S. at 103-07, 96 S.Ct. at 2397-99; United States v. Buchanan, 891 F.2d at 1441. Defendant, however, has not carried his burden to prove even the relatively lesser showing of materiality necessary to compel discovery under Brady. Title 18, section 287 reads: Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be imprisoned not more than five years and shall be subject to a fine in the amount provided in this title. The Tenth Circuit has repeatedly stated that to convict a defendant under this statute, the government must prove (1) that the defendant knowingly made and presented to a department or agency of the United States a false, fraudulent or fictitious claim against the United States, and (2) that the defendant acted with knowledge that the claim was false, fraudulent or fictitious. United States v. Rodriquez, No. CR-90-00375-01, 1992 WL 7443, at *2 (10th Cir. Jan. 13, 1992) (citation omitted); United States v. Kline, 922 F.2d 610, 611 (10th Cir.1990). Defendant does not appear to argue that he did not make and present the claim at issue. Rather he contends that he did not “know” that the claim was false, fraudulent or fictitious because he did not intend to defraud the government. Defendant speculates that if the company policy was to estimate the amount of time spent on Medicare and non-Medicare patients and if defendant" } ]

[ { "docid": "22966398", "title": "", "text": "Supreme Court has recognized that totally precluding judicial consideration of constitutional issues raises serious constitutional problems. Weinberger v. Salfi, supra, 422 U.S. at 762, 95 S.Ct. at 2465, 45 L.Ed.2d at 537; Johnson v. Robison, 415 U.S. 361, 366 & n. 8, 94 S.Ct. 1160, 1165, 39 L.Ed.2d 389, 397 (1974). Those constitutional problems are greatly intensified when an agency purports to subdelegate its immunity from judicial review to a nongovernmental entity. It is a “cardinal principle” that we are to ascertain whether a construction of the statute involved is “fairly possible” by which such constitutional doubts may be avoided. Johnson v. Robison, supra, 415 U.S. at 366-67, 94 S.Ct. at 1165-1166, 39 L.Ed.2d at 397-398. We are to proceed in what Justice Stewart termed “the candid service of avoiding a serious constitutional doubt.” United States v. Vuitch, 402 U.S. 62, 97, 97 S.Ct. 1294, 1312, 28 L.Ed.2d 601, 624 (1971) (Stewart, J., dissenting in part). Thus, we must now return to § 405(h) to determine if it precludes our jurisdiction to entertain a due process challenge to the procedures adopted by the Secretary to determine Medicare reimbursements. Section 405(h) forbids any action under § 1331 “to recover on any claim arising under this subchapter.” Appellees in Salfi argued that this did not bar their constitutional claims since they “arose under” the Constitution and not under the Social Security Act. The Supreme Court recognized that this argument had substance. 422 U.S. at 760, 95 S.Ct. at 2464, 45 L.Ed.2d at 536. However, it rejected the argument because not only is it Social Security benefits which appellees seek to recover, but it is the Social Security Act which provides both the standing and the substantive basis for the presentation of their constitutional contentions. [Id. at 760-61, 95 S.Ct. at 2464, 45 L.Ed.2d at 536.] The Court also indicated that its decision was influenced by the availability of fully adequate judicial review under § 405(g). The Court said: In the present case * * * the Social Security Act itself provides jurisdiction for constitutional challenges to its provisions. Thus the plain words" } ]

[ { "docid": "22858435", "title": "", "text": "(d), (e). . The Court noted in its order that PCME brought the motion for injunctive relief pursuant to Rule 62(c). No other authority for the order was offered. 440 F.Supp. at 308. . The Secretary did appeal the Rule 62(c) injunction, but not until nearly two years after it was issued. The motion was denied by this Court on July 13, 1979. . See Humana of South Carolina, Inc. v. Califano, 191 U.S.App.D.C. 368, 590 F.2d 1070 (D.C. Cir. 1978); Dr. John T. MacDonald Foundation, Inc. v. Califano, 571 F.2d 328 (5th Cir.) (en banc), cert. denied, 439 U.S. 893, 99 S.Ct. 250, 58 L.Ed.2d 238 (1978) (holding that jurisdiction over disputes in pre-PRRB cost years lies in the Court of Claims); Association of Am. Medical Colleges v. Califano, 186 U.S.App.D.C. 270, 569 F.2d 101 (D.C. Cir. 1977); Trinity Memorial Hosp. v. Associated Hosp. Serv., Inc., 570 F.2d 660 (7th Cir. 1977) (same as MacDonald]l; Hazelwood Chronic & Convalescent Hosp., Inc. v. Weinberger, 543 F.2d 703 (9th Cir. 1976), vacated for reconsideration in light of Califano v. Sanders, 430 U.S. 952, 97 S.Ct. 1595, 51 L.Ed.2d 801 (1977); Whitecliff, Inc. v. United States, 536 F.2d 347 (Ct.Cl.1976), cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977), (holding that the Court of Claims does have jurisdiction to review pre-1973 claims, under 28 U.S.C. § 1491). . 42 U.S.C. § 405(h) (1976) provides in full: “Finality of Secretary’s decision. “The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter.” . Section 205(h) is incorporated into the Medicare Act “to the same extent . . . applicable .. . to [Title II].” 42 U.S.C. § 1395ii. See Humana of South" }, { "docid": "3162068", "title": "", "text": "when constitutional procedural claims were in issue, were cases in which jurisdiction would ultimately lie under section 205(g) after a final disposition. The issue was whether the exhaustion requirement of section 205(g) had been satisfied or waived. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Here there is no possible claim under 205(g), 42 U.S.C. § 405(g). Doubt as to whether this type of claim should be construed as barred by section 205(h), 42 U.S.C. § 405(h), should be resolved in favor of finding jurisdiction since the availability of judicial review for constitutional questions is generally “presumed.” Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977). See also Trinity Memorial Hospital v. Associated Hospital Service, Inc., 570 F.2d 660, 665 (7th Cir.1977). Courts have found jurisdiction over claims challenging Medicare Part B procedures on constitutional grounds. See Leduc v. Harris, 488 F.Supp. 588, 590 (D.Mass.1980); McClure v. Harris, 503 F.Supp. 409, 412 (N.D.Cal.1980) (jurisdiction over constitutional claims because they are collateral to claims for benefits), rev’d on other grounds, 456 U.S. 188, 102 S.Ct. 1665, 72 L.Ed.2d 1 (1982). See also St. Louis University v. Blue Cross Hospital Service, 537 F.2d 283, 291-93 (8th Cir.), cert. denied, 429 U.S. 977, 97 S.Ct. 484, 50 L.Ed.2d 584 (1976) (jurisdiction under § 1331 to consider provider’s due process claim that hearing on reimbursement was inadequate). But cf. Trinity Memorial Hospital v. Associated Hospital Service, Inc., 570 F.2d 660, 665 (7th Cir.1977) (although district court had no jurisdiction over provider’s due process claims under § 1331, Court of Claims has jurisdiction over due process claim). If the statute were, construed to deprive all courts of jurisdiction over plaintiffs’ substantial constitutional claims, that preclusion itself would present a due process constitutional problem. See Weinberger v. Salfi, 422 U.S. 749, 762, 95 S.Ct. 2457, 2465, 45 L.Ed.2d 522 (1975); Johnson v. Robison, 415 U.S. 361, 367, 94 S.Ct. 1160, 1165-66, 39 L.Ed.2d 389 (1974). Federal jurisdiction over the constitutional claims would also seem to be required since the only persons to whom" }, { "docid": "525334", "title": "", "text": "1651(a) (the All Writs Act) and upon 42 U.S.C. § 1395ff(c), which provides for judicial review of a final decision of the Secretary of Health and Human Services as provided in 42 U.S.C. § 405(g), that is, only after the exhaustion of administrative remedies. Federal question jurisdiction under 28 U.S.C. § 1331 is precluded by 42 U.S.C. § 405(h), which makes 42 U.S.C. § 405(g) the exclusive form of judicial review of agency decisions. Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975); American Assn. of Councils of Medical Staffs v. Califano, 575 F.2d 1367 (5th Cir.), cert. denied, 439 U.S. 1114, 99 S.Ct. 1018, 59 L.Ed.2d 72 (1979). Furthermore, while Landmark argues that this is a case to which the exhaustion of administrative remedies requirement should not be applied, the Court, after scrutinizing Landmark’s complaint, Motion for Temporary Restraining Order and/or Preliminary Injunction and supporting affidavits and attachments, concludes that this is not a case which raises claims “wholly collateral to the substantive issues,” thereby permitting waiver of the exhaustion of administrative remedies rule. Mathews v. Eldridge, 424 U.S. 319, 330, 96 S.Ct. 893, 900, 47 L.Ed.2d 18 (1976). The Court also concludes that it would be inappropriate in this case for it to exercise its All Writs Act power to issue an injunctive status quo order in aid of its potential jurisdiction. While the Supreme Court in Sampson v. Murray noted that district Courts are “not totally without authority to grant interim injunctive relief” in a status quo action, 415 U.S. 61, 63, 94 S.Ct. 937, 940, 39 L.Ed.2d 166 (1974), it also warned that a district court would be wrong in routinely applying the traditional preliminary injunction standards to such a case. Id. 415. U.S. at 83-84, 94 S.Ct. at 950. The Eleventh Circuit has interpreted this to mean that a district court should require the applicant for a status quo injunction under The All Writs Act to demonstrate: (1) virtual certainty of irreparable injury, (2) similar certainty of success on the merits, for example, outrageous or entirely unauthorized (ultra vires, so to" }, { "docid": "21071330", "title": "", "text": "1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1018, 59 L.Ed.2d 72 (1979). This holds true for Part B as well as for Part A actions. Compare Pushkin v. Califano, 600 F.2d at 490 (under Part B) with Dr. John T. MacDonald Fdtn., Inc. v. Califano, 571 F.2d at 332 (under Part A). Appellants could have sought damages in their complaint, although they instead requested declaratory and injunctive relief. Judicial review of any substantial constitutional or statutory claim, therefore, is available in the Court of Claims under 28 U.S.C. § 1491. . There is some doubt about whether Congress has precluded judicial review under the Mandamus and Venue Act of 1962, 28 U.S.C. § 1361. See American Ass’n of Councils of Med. Staffs of Private Hospitals, Inc. v. Califano, 575 F.2d at 1373 (dictum). Because we hold that the constitutional claims raised are insubstantial and note that the Court of Claims has'held that it has jurisdiction of this action, we do not resolve whether federal courts other than the Court of Claims have mandamus jurisdiction over a properly stated claim under section 1361. See Association of Am. Med. Colleges v. Califano, 569 F.2d 101, 112 (D.C.Cir. 1977); RoAne v. Mathews, 538 F.2d 852, 854 (9th Cir. 1976). Jurisdiction clearly does not exist under the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, which does not confer an independent basis of subject-matter jurisdiction, Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-40, 57 S.Ct. 461, 81 L.Ed. 617 (1937), or under the Administrative Procedure Act, 5 U.S.C. § 551 et seq., because “the APA does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action,” Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 985, 51 L.Ed.2d 192 (1977) (under Social Security Act); accord, Dr. John T. MacDonald Fdtn., Inc. v. Califano, 571 F.2d at 330. . See also Califano v. Sanders, 430 U.S. at 109, 97 S.Ct. 980; Weinberger v. Salfi, 422 U.S. at 762," }, { "docid": "7726734", "title": "", "text": "1975); id. § 1395x(v)(l)(A). . 186 U.S.App.D.C. at 280, 569 F.2d at 111. . Id. at 279, 569 F.2d at 110. . Id. at 276, 569 F.2d at 107. . Id. at 279, 569 F.2d at 110. . Pub.L.No.93-484, § 3(b), 88 Stat. 1459 (1974). . See Adams Nursing Home, Inc. v. Mathews, 548 F.2d 1077 (1st Cir. 1977) (recognizing jurisdiction under the Administrative Procedure Act, prior to Califano v. Sanders, supra note 14, over provider-reimbursement dispute not reviewable by means of § 1395oo); South Windsor Convalescent Home, Inc. v. Mathews, 541 F.2d 910 (2d Cir. 1976) (holding that jurisdiction over provider-reimbursement dispute arising prior to broadening of § 1395oo lies in the Court of Claims under 28 U.S.C. § 1491 (1970)); Dr. John T. MacDonald Foundation, Inc. v. Califano, 571 F.2d 328 (5th Cir. en banc 1978) (same as South Windsor, supra); Trinity Memorial Hosp. v. Associated Hosp. Serv., Inc., 570 F.2d 660 (7th Cir. 1977) (same as South Windsor, supra); Hazelwood Chronic & Convalescent Hosp., Inc. v. Weinberger, 543 F.2d 703 (9th Cir. 1976) (same as Adams, supra), vacated for reconsideration in light of Califano v. Sanders, 430 U.S. 952, 97 S.Ct. 1595, 51 L.Ed.2d 801 (1977). The Supreme Court’s decision in Califano v. Sanders, supra note 14, does not conflict with this reading of Salfi. In Califano, the Court ruled that the Secretary’s refusal to reopen a disallowed disability insurance claim was not reviewable by any route. There, however, the claimant had had an opportunity to seek judicial review, pursuant to § 205(g), of the Secretary’s initial ineligibility determination; his failure to utilize in timely fashion available statutory review procedures was responsible for his inability to secure judicial consideration. The Court construed § 205(h) thusly: This section has been held to require the exhaustion of available administrative procedures, to foreclose jurisdiction under the general grant of federal-question jurisdiction, 28 U.S.C. § 1331, and to route review through § 205(g). See Weinberger v. Salfi . 430 U.S. at 103 n.3, 97 S.Ct. at 983-984 n.3, 51 L.Ed.2d at 198 n.3 (emphasis supplied). . See note 46 supra. ." }, { "docid": "22460486", "title": "", "text": "mandamus, since these essentially factual disputes are not amenable to the mandamus remedy. Conversely, it would strain belief to think that Congress meant to require a plaintiff to forego mandamus and resort to prolonged § 405 procedures where a clear duty in the defendant to pay disability benefits, e. g., a prior judgment, had been demonstrated. However, even if the ban articulated in § 405(h) were read as applying to actions brought under jurisdictional grants other than those formerly collected in section 24 of the Judicial Code, such as the mandamus statute, it would not follow that suits like the instant one would be defeated. Unlike the plaintiff in Sanders, whose action was the run-of-mine type clearly fitting the language “to recover on any claim arising under” Title II, the plaintiff in this case, like the plaintiffs in White and Barnett, raises only a procedural challenge, the adjudication of which will not affect the substantive question of continued entitlement to disability payments. As noted above, in suits under the Medicare Act, which incorporates § 405(h), 42 U.S.C. § 1395Ü, it has been held that such procedural claims are not claims “to recover” benefits and may therefore be grounded on § 1331. See, e. g., St Louis University v. Blue Gross Hospital Service, supra; Humana of South Carolina, Inc., 590 F.2d 1070, 1080-81 (D.C.Cir.1978). But see Trinity Memorial Hospital of Cudahy, Inc. v. Associated Hospital Service, Inc., 570 F.2d 660, 667 (7 Cir. 1977); American Association of Councils of Medical Staffs of Private Hospitals, Inc. v. Califano, 575 F.2d 1367, 1372 (5 Cir. 1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1018, 59 L.Ed.2d 72 (1979). Whether or not that position is correct, we do not think that the language of § 405(h) can be stretched to include procedural claims resting on mandamus jurisdiction. The case at bar is particularly strong in this respect, at least as regards Ellis: because she filed her action before being terminated, she did not even claim entitlement to benefits, and because her benefits in fact continued without interruption, there is no possibility that an award" }, { "docid": "22460487", "title": "", "text": "42 U.S.C. § 1395Ü, it has been held that such procedural claims are not claims “to recover” benefits and may therefore be grounded on § 1331. See, e. g., St Louis University v. Blue Gross Hospital Service, supra; Humana of South Carolina, Inc., 590 F.2d 1070, 1080-81 (D.C.Cir.1978). But see Trinity Memorial Hospital of Cudahy, Inc. v. Associated Hospital Service, Inc., 570 F.2d 660, 667 (7 Cir. 1977); American Association of Councils of Medical Staffs of Private Hospitals, Inc. v. Califano, 575 F.2d 1367, 1372 (5 Cir. 1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1018, 59 L.Ed.2d 72 (1979). Whether or not that position is correct, we do not think that the language of § 405(h) can be stretched to include procedural claims resting on mandamus jurisdiction. The case at bar is particularly strong in this respect, at least as regards Ellis: because she filed her action before being terminated, she did not even claim entitlement to benefits, and because her benefits in fact continued without interruption, there is no possibility that an award of benefits could be granted her in this lawsuit. While it is true that the complaint did seek reinstatement of benefits for those members of the class who had been terminated without receiving a pretermination notice containing a statement of reasons and a summary of evidence, we are not convinced that a temporary reinstatement of benefits pending compliance with due process is the kind of recovery that Congress had in mind when it enacted § 405(h) in 1939. And in any event, we do not see much sense in making our jurisdiction depend upon a less thorough pleading of the relief desired. We thus adhere to our prior decisions in White and Barnett and answer the question expressly left open by the Supreme Court in the three cases cited by holding that § 405(h) does not preclude assertion of § 1361 jurisdiction over claims essentially procedural in nature. Perceiving no other obstacles to mandamus jurisdiction, we rule that the district court erred in concluding it lacked jurisdiction over the claims against the Secretary. Mootness Establishing" }, { "docid": "23292968", "title": "", "text": "the Supreme Court distinguished between a waivable element of the jurisdictional requirements of Section 205(g) and a nonwaivable element. The non-waivable element is the filing of an application for benefits, which was properly alleged in the case at bar. The waivable element is the “requirement that administrative remedies prescribed by the Secretary be exhausted.” Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 899, 47 L.Ed.2d 18 (1976); see also Jimenez v. Mathews, 523 F.2d 689 (7th Cir. 1975), cert. denied, 427 U.S. 912, 96 S.Ct. 3200, 49 L.Ed.2d 1204 (1976). In Eldridge the Court characterized the plaintiff’s asserted right to a due process hearing before his disability benefits could be terminated as being “entirely collateral to his substantive claim of entitlement” and found it to be a case “where [the] claimant’s interest in having a particular issue resolved promptly is so great that deference to the agency’s judgment is inappropriate.” 424 U.S. at 330, 96 S.Ct. at 900. With regard to its findings of waiver in Eldridge and Salfi, the Court in Califano v. Sanders, 430 U.S. 99, 109, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977), stated: In both instances . . . the claimants challenged the Secretary’s decisions on constitutional grounds. Constitutional questions obviously are unsuited to resolution in administrative hearing procedures and, therefore, access to the courts is essential to the decision of such questions. Furthermore, since federal-question jurisdiction under 28 U.S.C. § 1331 is precluded by § 205(h), Weinberger v. Sal-fi, supra, at 761 [95 S.Ct. 2457], a decision denying § 205(g) jurisdiction in Salfi or Eldridge would effectively have closed the federal forum to the adjudication of colorable constitutional claims. Thus those cases merely adhered to the well-established principle that when constitutional questions are in issue, the availability of judicial review is presumed, and we will not read a statutory scheme to take the “extraordinary” step of foreclosing jurisdiction unless Congress’ intent to do so is manifested by “ ‘clear and convincing’ ” evidence. 422 U.S., at 762 [95 S.Ct. 2457]; Johnson v. Robinson, 415 U.S. 361, 366-367 [94 S.Ct. 1160, 39 L.Ed.2d" }, { "docid": "18355572", "title": "", "text": "Medicare Act specifically precludes judicial review of PRRB decisions under the general federal question statute, 28 U.S.C. § 1331, or the mandamus statute, 28 U.S.C. § 1336. John Muir, 457 F.Supp. at 853; Califano v. Settle, 708 F.2d 1380, 1384-85 (9th Cir.1983). Furthermore, while section 405(g) provides an alternative basis of jurisdiction for suits brought under the Social Security Act, Weinberger v. Salfi, 422 U.S. 749, 767, 95 S.Ct. 2457, 2467, 45 L.Ed.2d 522 (1975), the courts are in universal agreement that the alternative judicial review provisions of section 405(g) are not applicable to the Medicare Act, by virtue of the fact, that section 1395Ü of the Act makes section 405(h) applicable to Medicare claims but does not do the same for section 405(g). John Muir, 457 F.Supp. at 854, citing Association of American Medical Colleges v. Califano, 569 F.2d 101 (D.C.Cir.1977); Trustees of Indiana University v. Blue Cross Association, 445 F.Supp. 617, 618-19 (S.D.Ind.1977). . Sheehan, in turn, is derived from decisions of the United States Supreme Court in Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) and Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). In Weinberger, the Supreme Court held that section 405(g) is the exclusive avenue to review the Secretary’s decisions, and that a “final decision” of the Secretary is a \"jurisdictional prerequisite” to judicial review which \"may not be dispensed with merely by a judicial conclusion” that the failure to exhaust was inadvertent or unintentional. Weinberger, 422 U.S. at 766, 95 S.Ct. at 2467. In Califano v. Sanders the Court determined that an agency decision not to reopen claims for social security benefits is a discretionary exercise not subject to judicial review. The Court explained in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) that the \"final decision” jurisdictional requirement of section 405(g) consists of two elements — (1) that the administrative remedies prescribed by the Secretary be exhausted, and (2) that a claim for benefits shall have been presented to the Secretary — and further explained that only the" }, { "docid": "2617033", "title": "", "text": "was a party, * * * may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. Such action shall be brought in the district court of the United States in which the plaintiff resides, or has his principle place of business * * Plaintiff also invokes this Court’s jurisdiction under 28 U.S.C. §§ 1331 (federal question), 2201 (declaratory judgment), and 2202 (injunction). Section 405(h) of the Social Security Act precludes resort to federal question jurisdiction for the adjudication of claims for social security benefits. Califano v. Sanders, 430 U.S. 99, 109, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977); Wein berger v. Salfi, 422 U.S. 749, 761, 95 S.Ct. 2457, 2464, 45 L.Ed.2d 522 (1975). Moreover, the declaratory judgment/injunction sections of the Judiciary Act simply create remedies; they are not independent bases for federal jurisdiction. Skelly Oil Co. v. Phillips Petroleum, 339 U.S. 667, 671-74, 70 S.Ct. 876, 878-80, 94 L.Ed. 1194 (1950); California Dump Truck Owners Association v. Associated General Contractors of America, 562 F.2d 607, 609 n. 1 (9th Cir.1977). Accordingly, § 405(g) provides the only jurisdictional basis for the relief requested herein. . The Court expresses no opinion concerning the proposed class’ compliance with the remaining Salfi requirements. . Plaintiff alleges in her complaint that she argued (only) that the claims manual limitations conflicted with the applicable statute and regulations, and not that their promulgation violated the APA and/or the FOIA. See Complaint pp. 6-7 ¶ 6.7. The full record of the administrative proceedings below contains no reference to the APA or the FOIA. . Plaintiff's failure to submit her APA, FOIA, and Fifth Amendment \"claims\" to the Secretary might be construed to violate the first (presentation) element of “finality\" as well. The presentation element is nonwaivable by the Court or by the Secretary. Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 899, 47 L.Ed.2d 18 (1979). However, the type of “claim” that must be presented to the Secretary under" }, { "docid": "21071331", "title": "", "text": "over a properly stated claim under section 1361. See Association of Am. Med. Colleges v. Califano, 569 F.2d 101, 112 (D.C.Cir. 1977); RoAne v. Mathews, 538 F.2d 852, 854 (9th Cir. 1976). Jurisdiction clearly does not exist under the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, which does not confer an independent basis of subject-matter jurisdiction, Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-40, 57 S.Ct. 461, 81 L.Ed. 617 (1937), or under the Administrative Procedure Act, 5 U.S.C. § 551 et seq., because “the APA does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action,” Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 985, 51 L.Ed.2d 192 (1977) (under Social Security Act); accord, Dr. John T. MacDonald Fdtn., Inc. v. Califano, 571 F.2d at 330. . See also Califano v. Sanders, 430 U.S. at 109, 97 S.Ct. 980; Weinberger v. Salfi, 422 U.S. at 762, 95 S.Ct. 2457; American Ass’n of Councils of Med. Staffs of Private Hospitals, Inc. v. Califano, 575 F.2d at 1372-73; Springdale Convalescent Center v. Mathews, 545 F.2d 943, 948 (5th Cir. 1977); St. Louis Univ. v. Blue Cross Hospital Serv., 537 F.2d 283, 292 (8th Cir.), cert. denied, 429 U.S. 977, 97 S.Ct. 484, 50 L.Ed.2d 584 (1976); Pacemaker Monitor Corp. v. United States Gov’t, 440 F.Supp. 473, 479 (S.D.Fla.1977); Daytona Beach General Hosp., Inc. v. Weinberger, 435 F.Supp. 891, 899-900 (M.D.Fla.1977). . Such a classification is unconstitutional only if “ ‘the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.’ ” Barry v. Barchi, - U.S.-,-, 99 S.Ct. 2642, 2650, 61 L.Ed.2d 365 (1979) (quoting Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979)). Accord, Pushkin v. Califano, 600 F.2d at 491. . See also Poeiker v. Doe, 432 U.S. 519, 97 S.Ct. 2391, 53 L.Ed.2d 528 (1977)" }, { "docid": "17964175", "title": "", "text": "bar imposed by Section 405(g) in cases where a plaintiff presents a \"colorable constitutional claim” which is collateral to the substantive claim for entitlement to reimbursement. See Mathews v. Eldridge, 424 U.S. 319, 330-32, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Weinberger v. Salfi, 422 U.S. 749, 764-67, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975); Penner v. Schweiker, 701 F.2d 256 (3d Cir.1983) (concluding that district court had jurisdiction to review the Secretary’s refusal to grant a hearing where claimant raised a “colorable constitutional claim” that his due process rights had been violated). As the Court observed in Califano v. Sanders, \"[cjonstitutional questions obviously are unsuited to resolution in administrative hearing procedures and, therefore, access to the courts is essential to the decision of such claims.” 430 U.S. 99, 109, 97 S.Ct. 980, 51 L.Ed.2d 192. However, Plaintiff has not explicitly raised any constitutional claims, nor do the allegations in his complaint suggest any conceivable basis for asserting such a claim. . Section 405(h) provides, in relevant part, that \"no findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or government agency except as herein provided.” The Act further specifically prohibits exercise of jurisdiction over Medicare-related claims pursuant to either 28 U.S.C. § 1331 or § 1346. The Supreme Court has consistently declined to address whether this language similarly forecloses resort to 28 U.S.C. § 1361, which authorizes action in the nature of mandamus. See Califano v. Yamasaki, 442 U.S. 682, 698, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979); Heckler v. Ringer, 466 U.S. 602, 616-617, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984). At least one court of appeals has held that § 1361, may, in rare circumstances, provide a district court with j.urisdiction to consider otherwise unreviewable procedural decisions which are unrelated to the merits of a claim for benefits and contrary to a clear nondiscretionary duty. See Dietsch v. Schweiker, 700 F.2d 865, 868 (2d Cir.1983) (concluding that the district court had mandamus jurisdiction under § 1361 to consider plaintiffs claim that the SSA Appeal Council’s determination with respect to the timeliness" }, { "docid": "23523527", "title": "", "text": "of such questions.” Califano v. Sanders, 430 U.S. 99, 109, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977). Indeed, if Congress intended to preclude judicial review of the constitutionality of a statutory procedural scheme, that likely would raise a substantial question concerning the constitutionality of the statute itself. Weinberger v. Salfi, 422 U.S. 749, 762, 95 S.Ct. 2457, 2465, 45 L.Ed.2d 522 (1975). Several cases have refused to read statutory finality provisions to preclude review of constitutional claims. See, e.g., Johnson v. Robison, 415 U.S. 361, 373-74, 94 S.Ct. 1160, 1168-69, 39 L.Ed.2d 389 (1974); Rosen v. Walters, 719 F.2d 1422, 1423 (9th Cir.1983); Parodi v. Merit Systems Protection Board, 702 F.2d 743, 745-49 (9th Cir.1982); Humana, Inc. v. Califano, 590 F.2d 1070, 1080-81 (D.C.Cir.1978); Trinity Memorial Hospital, Inc. v. Associated Hospital Service, Inc., 570 F.2d 660, 665-67 (7th Cir.1977); Ralpho v. Bell, 569 F.2d 607, 620-22 (D.C.Cir.1977). The structure of FECA and the language of section 8128(b) convince us that Congress’s intent was that the courts not be burdened by a flood of small claims challenging the merits of compensation decisions, see, e.g., Soderman v. United States Civil Service Commission, 313 F.2d 694, 695 (9th Cir.1962) (per curiam), cert. denied, 372 U.S. 968, 83 S.Ct. 1089, 10 L.Ed.2d 131 (1963), and that the Secretary should be left free to make the policy choices associated with disability decisions. Cf. United States v. Erika, Inc., 456 U.S. 201, 208-10, 102 S.Ct. 1650, 1654-55, 72 L.Ed.2d 12 (1982) (similar purpose found in Medicare review provisions); Johnson v. Robison, 415 U.S. at 370, 94 S.Ct. at 1167 (similar purpose found in finality provision of veterans’ benefits statute). We do not read the statute to take the “extraordinary” step of foreclosing jurisdiction over constitutional claims. See Califano v. Sanders, 430 U.S. at 109, 97 S.Ct. at 986; see, e.g., Allen v. Faragasso, 585 P.Supp. 1114, 1118 n. 3 (N.D.Cal.1984) (court decided challenges to OWCP procedures but refused to consider merits of compensation decision). Although a mere allegation of a constitutional violation would not be sufficient to avoid the effect of a statutory finality-provision, see" }, { "docid": "23030061", "title": "", "text": "disabused us of that notion, however, in Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), holding that § 10 does not provide an independent source of subject matter jurisdiction to review agency actions. The Court based its holding on the recent expansion of § 1331(a) jurisdiction that obliterated any necessity for § 10 review jurisdiction and therefore evidenced Congress’ intent that § 10 was not an independent source of jurisdiction. Sanders necessitated the second panel attempt, reported at 554 F.2d 714 (1977). The court again held that review jurisdiction existed, not under the A.P.A., but pursuant to 28 U.S.C. § 1331, the basic grant of federal question jurisdiction. Although the court held that § 1331 provided jurisdiction, the court limited the availability of such review to the “time window” from 1968 until the Congress expressly provided review machinery in 1973. Again the Supreme Court has provided us with assistance, however. In Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), the Court held that § 405(h) precludes district court review of Social Security Act awards. The Court held not only that § 1331 review of the merits of the award was unavailable, but also that constitutional claims were precluded. Hence, this en banc determination. The evolution of this issue in our court is reflected in the varied treatments of the same issue in the other forums. The Eighth Circuit has held that although § 405(h) precludes review of agency findings of fact and law, § 405(h) does not preclude jurisdiction to entertain constitutional claims. St. Louis University v. Blue Cross Hospital Service, 537 F.2d 283 (8th Cir. 1976), cert. denied, 429 U.S. 977, 97 S.Ct. 484, 50 L.Ed.2d 584 (1977). The Second and Seventh Circuits have determined that § 405(h) precludes district court review of all claims arising under the Medicare Act, including constitutional claims. They did “hold,” however, that review jurisdiction exists in the Court of Claims. South Windsor Convalescent Home, Inc. v. Mathews, 541 F.2d 910 (2d Cir. 1976); Trinity Memorial Hospital of Cudahy, Inc. v. Associated Hospital Service," }, { "docid": "23319029", "title": "", "text": "not bear this out. On the other hand, Mrs. Biner asserts that no explanation whatsoever was furnished by the Administration articulating the purpose in its sending this check. . We note that § 405(g) jurisdiction is also available for the named plaintiffs. Mathews v. Eidridge, 424 U.S. 319, 328-32, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). It was not addressed below, presumably because, prior to Eidridge, it was thought to be unavailable. There are some potential problems with the adequacy of § 405(g) jurisdiction in cases of this sort, which lead us to the conclusion that mandamus jurisdiction remains appropriate. It is not entirely clear that relief for the class is available under § 405(g) jurisdiction, because of the exhaustion problems for class members posed by Weinberger v. Salfi, 422 U.S. 749, 755, 764, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). Furthermore, there is some uncertainty whether district courts may issue injunctions applicable to a class under § 405(g) jurisdiction. Id., at 763 n. 8, 95 S.Ct. 2457. In light of the uncertainties in the adequacy of § 405(g) class relief, we think mandamus is appropriate. . Nor is there any conflict with Baker v. Mathews, 538 F.2d 855 (9th Cir. 1976); and RoAne v. Mathews, 538 F.2d 852 (9th Cir. 1976). Those cases did not involve due process claims, but involved non-constitutional claims for refunds, which like claims for benefits, should be addressed via § 405(g) only after exhaustion of administrative remedies. . The recent case of Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) does not persuade us otherwise. In distinguishing Eldridge and Salfi, the Court in Califano included some dicta suggesting that if jurisdiction had not been found in those cases under § 405(g) the federal forum would have been closed to colorable constitutional claims: Constitutional questions obviously are unsuited to resolution in administrative hearing procedures and, therefore, access to the courts is essential to the decision of such questions. Furthermore, since federal-question jurisdiction under 28 U.S.C. § 1331 is precluded by § 205(h), Weinberger v. Salfi, supra, 422 U.S. at 761," }, { "docid": "23523526", "title": "", "text": "or denying a payment.” The conduct of the Secretary that Rodrigues challenges in this action is not the “allowing or denying [of] a payment,” but rather the manner in which his claim was decided. He contends that he has been denied procedural due process. He does not seek to have his disability claim decided by the district court. He is not arguing in any respect the merits of his underlying compensation claim. Rodrigues’s procedural challenge is entirely collateral to his underlying substantive claim for benefits. See Boettcher v. Secretary of Health & Human Services, 759 F.2d 719, 721 (9th Cir.1985); cf. Heckler v. Ringer, 466 U.S. 602, 104 S.Ct. 2013, 2021, 80 L.Ed.2d 622 (1984) (challenge to procedures was “inextricably intertwined” with claim for benefits, therefore claim should not be separated into procedural and substantive elements). The presumption in favor of judicial review is especially strong in cases in which constitutional challenges are raised. “Constitutional questions obviously are unsuited to resolution in administrative hearing procedures and, therefore, access to courts is essential to the decision of such questions.” Califano v. Sanders, 430 U.S. 99, 109, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977). Indeed, if Congress intended to preclude judicial review of the constitutionality of a statutory procedural scheme, that likely would raise a substantial question concerning the constitutionality of the statute itself. Weinberger v. Salfi, 422 U.S. 749, 762, 95 S.Ct. 2457, 2465, 45 L.Ed.2d 522 (1975). Several cases have refused to read statutory finality provisions to preclude review of constitutional claims. See, e.g., Johnson v. Robison, 415 U.S. 361, 373-74, 94 S.Ct. 1160, 1168-69, 39 L.Ed.2d 389 (1974); Rosen v. Walters, 719 F.2d 1422, 1423 (9th Cir.1983); Parodi v. Merit Systems Protection Board, 702 F.2d 743, 745-49 (9th Cir.1982); Humana, Inc. v. Califano, 590 F.2d 1070, 1080-81 (D.C.Cir.1978); Trinity Memorial Hospital, Inc. v. Associated Hospital Service, Inc., 570 F.2d 660, 665-67 (7th Cir.1977); Ralpho v. Bell, 569 F.2d 607, 620-22 (D.C.Cir.1977). The structure of FECA and the language of section 8128(b) convince us that Congress’s intent was that the courts not be burdened by a flood of small" }, { "docid": "23292967", "title": "", "text": "the court erred in allowing the government to recoup interim payments should an applicant eventually be found to have been ineligible. This court has jurisdiction over these appeals under 28 U.S.C. § 1291. Jurisdiction The complaint alleged jurisdiction under the Administrative Procedure Act, 5 U.S.C. § 701, et seq., the federal question statute, 28 U.S.C. § 1331, the mandamus statute, 28 U.S.C. § 1361, and Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). We conclude that the district court had jurisdiction under Section 205(g) and do not consider the other sections. See Caswell v. Califano, 583 F.2d 9 (1st Cir. 1978); Mattern v. Mathews, 582 F.2d 248 (3d Cir. 1978); Liberty Alliance of the Blind v. Califano, 568 F.2d 333 (3d Cir. 1977). The Secretary’s principal objection to finding jurisdiction under Section 205(g) is that at the time this suit was instigated there had been no “final decision” on the plaintiffs’ claims as required by the statute. However, in Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), the Supreme Court distinguished between a waivable element of the jurisdictional requirements of Section 205(g) and a nonwaivable element. The non-waivable element is the filing of an application for benefits, which was properly alleged in the case at bar. The waivable element is the “requirement that administrative remedies prescribed by the Secretary be exhausted.” Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 899, 47 L.Ed.2d 18 (1976); see also Jimenez v. Mathews, 523 F.2d 689 (7th Cir. 1975), cert. denied, 427 U.S. 912, 96 S.Ct. 3200, 49 L.Ed.2d 1204 (1976). In Eldridge the Court characterized the plaintiff’s asserted right to a due process hearing before his disability benefits could be terminated as being “entirely collateral to his substantive claim of entitlement” and found it to be a case “where [the] claimant’s interest in having a particular issue resolved promptly is so great that deference to the agency’s judgment is inappropriate.” 424 U.S. at 330, 96 S.Ct. at 900. With regard to its findings of waiver in Eldridge and Salfi, the Court in Califano" }, { "docid": "3162067", "title": "", "text": "522 (1975)). It has applied the bar to cases raising constitutional challenges. See Heckler v. Ringer, supra; Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). Although in each of the Supreme Court’s rulings the claim was styled a procedural challenge, if relief ultimately were granted the plaintiff would have received benefits or reimbursement. See Ringer, supra — U.S. at —, 104 S.Ct. at 2022 (for most plaintiffs, following “the declaration which [they] seek ... only essentially ministerial details will remain before [they] would receive reimbursement”); Salfi, supra, 422 U.S. at 760, 95 S.Ct. at 2464. The instant case is distinguishable since plaintiffs seek prospective relief against a continuing illegal practice rather than specific benefits. But cf. Heckler v. Ringer, — U.S. —, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984) (jurisdiction rejected when declaratory relief was sought respecting reimbursement for prospective surgical procedure). In addition, the cases in which the Court has held federal question jurisdiction precluded, even when constitutional procedural claims were in issue, were cases in which jurisdiction would ultimately lie under section 205(g) after a final disposition. The issue was whether the exhaustion requirement of section 205(g) had been satisfied or waived. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Here there is no possible claim under 205(g), 42 U.S.C. § 405(g). Doubt as to whether this type of claim should be construed as barred by section 205(h), 42 U.S.C. § 405(h), should be resolved in favor of finding jurisdiction since the availability of judicial review for constitutional questions is generally “presumed.” Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977). See also Trinity Memorial Hospital v. Associated Hospital Service, Inc., 570 F.2d 660, 665 (7th Cir.1977). Courts have found jurisdiction over claims challenging Medicare Part B procedures on constitutional grounds. See Leduc v. Harris, 488 F.Supp. 588, 590 (D.Mass.1980); McClure v. Harris, 503 F.Supp. 409, 412 (N.D.Cal.1980) (jurisdiction over constitutional claims because they are collateral to" }, { "docid": "13296674", "title": "", "text": "F.2d 257 (3d Cir. 1966); Schneider v. Richardson, 441 F.2d 1320 (6th Cir.), cert. denied, 404 U.S. 872, 92 S.Ct. 101, 30 L.Ed.2d 117 (1971). See also Fenix v. Finch, 436 F.2d 831, 838 (8th Cir. 1971). Relying primarily on Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), and Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), petitioners argue the Secretary’s fee determination is reviewable under Section 405(g) of the Act. Section 405(g) “clearly limits judicial review to a particular type of agency action, a ‘final decision of the Secretary made after a hearing.’ ” Califano v. Sanders, supra, 430 U.S. at 108, 97 S.Ct. at 985. The Secretary’s regulations do not provide for a hearing on an attorney’s petition for fees. We are not persuaded that Congress intended to include attorneys when it provided either for hearings upon the request of “any individual applying for a payment under this subchapter,” 42 U.S.C. § 405(b), or for judicial review of a final decision when requested by a “party” to a hearing. Id. § 405(g); see Goodell v. Flemming, 179 F.Supp. 806, 808 (W.D.N.Y.1959). Judicial review not provided for in § 405(g) is foreclosed by § 405(h). Mathews v. Eldridge, 424 U.S. 319, 327, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). We therefore affirm the district court’s holding that it lacked subject matter jurisdiction to review the Secretary’s fee determination for an abuse of discretion. Petitioners additionally urge that the district court erred in dismissing their alleged constitutional claim. They assert there was a denial of due process for failure to hold an evidentiary hearing and for interference with their contractual relationship with their client. Section 405(g) has been construed to provide jurisdiction under certain circumstances for adjudication of colorable constitutional claims raised in connection with a claim for benefits under the Act, even when the requirements imposed by § 405(g) for review of the decision on the substantive claim have not been met. See Califano v. Sanders, supra, 430 U.S. at 109, 97 S.Ct. 980; Mathews v. Eldridge, supra, 424" }, { "docid": "22460472", "title": "", "text": "405(g) jurisdiction where no decision to terminate benefits had yet been made, and we would be reluctant to blaze the trail. Resolution of the issue of § 1331 jurisdiction over the Secretary is also difficult. While we are inclined to agree with the Eighth Circuit’s decision that Salfi did not preclude § 1331 jurisdiction over procedural challenges not necessarily affecting entitlement to benefits, see St. Louis University v. Blue Cross Hospital Service, supra, we find the question complicated by the subsequent decisions in Eldridge and Califano v. Sanders, supra. Eldridge raised the procedural claim of his right to a pretermination hearing, yet the Court relied on Salfi as restricting judicial review to 42 U.S.C. § 405(g), 424 U.S. at 327, 96 S.Ct. at 899. In Sanders, the Court reiterated that federal question juris diction is barred by § 405(h), and seemed to assume that this had been the case in Eldridge. 430 U.S. at 109, 97 S.Ct. at 986. Fortunately, however, we need not decide whether jurisdiction over the Secretary exists under § 405(g) or § 1331, since we are satisfied that jurisdiction is provided by 28 U.S.C. § 1361, added by the Mandamus and Venue Act of 1962, 76 Stat. 744. An impressive array of cases in this and other circuits has established that § 1361 jurisdiction will lie to review procedures employed in administering social security benefits, see, e. g., Martinez v. Richardson, 472 F.2d 1121, 1125-26 (10 Cir. 1973); Knuckles v. Weinberger, 511 F.2d 1221, 1222 (9 Cir. 1975); Frost v. Weinberger, 515 F.2d 57, 62 (2 Cir. 1975), cert. denied, 424 U.S. 958, 96 S.Ct. 1435, 47 L.Ed.2d 364 (1976); Ryan v. Shea, 525 F.2d 268, 271-72 (10 Cir. 1975); Elliott v. Weinberger, 564 F.2d 1219, 1225-27 (9 Cir. 1977), aff’d in part on other grounds sub nom. Califano v. Yamasaki, 442 U.S. 682, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979); White v. Mathews, 559 F.2d 852, 856 (2 Cir. 1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 500 (1978); Barnett v. Califano, 580 F.2d 28, 31 (2 Cir. 1978); Sharpe v. Harris," } ]

[ { "docid": "1199210", "title": "", "text": "that contemplated by § 523(a)(4): “The fiduciary relationship referred to in § 523(a)(4) has been held to be limited to express and technical trusts, neither of which the law implies from a contract.” Johnson 158 B.R. at 995 (citing In re Marchiando, 142 B.R. 246, 249 (N.D.Ill.1992)). In Johnson, the court considered whether a fiduciary relationship existed under § 523(a)(4) between joint venturers. It was determined that general partners under state law do not occupy the narrowly defined fiduciary relationship expressed in § 523(a)(4). In this ease, however, express trusts existed between the parties with respect both to the $53,000.00 check given for the purchase of the first two limousines and the $5,547.00 check to purchase insurance for those vehicles. An express trust is created when a settlor manifests an intent to create such a trust and identifies the subject matter of the trust, the nature of the beneficiaries’ interests, and the manner in which the trust is to be performed. In re Destron, Inc., 40 B.R. 927 (Bankr.N.D.Ill.1984) (citing Limperis v. Material Service Corp., 415 F.Supp. 65, 68 (N.D.Ill.1976)). The first express trust in this case was evidenced by the written receipt from Debtor and Gurieh for the $53,000.00 check. It is clear that they receipted for monies to be held by them in trust for use in purchasing two limousines for Green with title in his name. They took the $53,000.00 under an acknowledged, express trust to do so. The same is true of the $5,547.00 check given to insure the two limousines, although there was no written ac-knowledgement. Thus, a fiduciary relationship existed between the parties with respect to those two payments. Having determined that a fiduciary relationship existed between these parties, the next issue is whether a “defalcation” occurred. Under § 523(a)(4), defalcation is a failure to account for money or property that has been entrusted to another. In re Iaquinta, 98 B.R. 919 (Bankr.N.D.Ill.1989); In re Twitchell, 72 B.R. 431, 434 (Bankr.D.Utah 1987). An objective standard is used to determine defalcation, with no intent or bad faith needed. See In re Iaquinta, 98 B.R. at" } ]

[ { "docid": "11410378", "title": "", "text": "Alleged in Count I Actual fraud asserted under § 523(a)(2)(A) requires a plaintiff to prove that (1) a fraud occurred; (2) the debtor was guilty of intent to defraud; and (3) the fraud gave rise to the debt that is the subject of the discharge dispute. McClellan v. Cantrell, 217 F.3d 890, 893-894 (7th Cir.2000). McClellan further explained that “[fjraud is a generic term, which embraces all the multifarious means which human ingenuity can devise and which are resorted to by one individual to gain an advantage over another by false suggestions or by suppression of truth.” Id. at 893. CFC’s asserted evidence of fraud consists of Monroe’s deposition testimony wherein he admitted under cross-examination that under no circumstances would he return the deposit funds. Pl.’s Trial Exh. 56. CFC construes this as an admission that Monroe never intended from the outset to return the deposit funds. Pl.’s Post-Trial Prop. Findings of Fact and Concl. of Law at 17 ¶ 23. However, that is not what Monroe said. Monroe’s actual testimony was consistent with his contention that the cancellation letter repudiated the entire agreement and that he therefore had an off-setting claim. The preponderance of evidence did not show that Monroe had fraudulent intent, and he prevails as to the fraud allegation. Fraud, Embezzlement Defalcation and Larceny in Count II 11 U.S.C. § 523(a)(4) provides that a debtor may not receive a discharge from any debt “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” In order for the Creditor to prevail under this provision, plaintiff must prove that the debtor committed (1) fraud or defalcation while acting as a fiduciary; or (2) embezzlement; or (3) larceny. Express Trust or Fiduciary Relationship CFC must therefore establish the existence of an express trust or fiduciary relation, and a debt caused by the Monroe’s defalcation or fraud while acting as a fiduciary. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991); In re Woldman, 92 F.3d 546, 547 (7th Cir.1996). A threshold inquiry is whether an express trust or fiduciary obligation runs" }, { "docid": "18585858", "title": "", "text": "estoppel effect of the state court judgment, this Court must find that: 1. the issues are the same in the dis-chargeability and the state court action; 2. the issues were litigated in the state court action; 3. the issues were decided and addressed in a valid and final judgment from the state court; 4. the determination was essential to the final judgment. In re Suter, 59 B.R. 944, 945 (Bankr.N.D.Ill.1986). For the reasons explained below, the Court finds that the state court decision in Doucette v. Kwiat, 392 Mass. 915, 467 N.E.2d 1374 (1984) addresses each aspect of proof required under 11 U.S.C. § 523(a)(4) and, therefore, grants the plaintiff’s Motion for Summary Judgment on his claims and defendant’s counterclaim. First, plaintiff alleges and defendant denies that the Supreme Judicial Court found that the defendant had deprived the plaintiff the use of the funds in question while holding them in a fiduciary capacity. The term “fiduciary” as used within 11 U.S.C. § 523(a)(4) has a much narrower meaning then in its generally accepted use. In order for a fiduciary relationship to exist under 11 U.S.C. § 523(a)(4), there must either be an express or technical trust. Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S.Ct. 151, 79 L.Ed. 393 (1934); In re Cairone, 12 B.R. 60 (Bankr.D.R.I.1981); In re Schultz, 46 B.R. 880 (Bankr.Nev.1985). The trust relationship must exist prior to the defalcation and not arise as a result of it. An express trust has (1) a declaration of trust, (2) a clearly defined trust res, (3) and an intent to create a trust relationship. In re Cairone, supra. A technical express trust may exist by statute. In In re Janikowski, 14 B.C.D. 521, 60 B.R. 784 (Bankr.N.D.Ill.1986) the court specifically found an attorney to hold a fiduciary relationship under 11 U.S.C. § 523(a)(4), as established by disciplinary rules adopted by the state’s highest court. Clearly, an attorney holds a fiduciary capacity to his client, see, Collier, 15th ed. § 523.14, and cases cited therein, and Disciplinary Rule 9-102 adopted as part of Rule 3.07 by the Supreme Judicial" }, { "docid": "3766358", "title": "", "text": "1014, 1017 (7th Cir.2000). An express trust requires an explicit declaration of trust, a clearly defined trust res, and an intent to create a trust. Monroe, 304 B.R. at 358. The intent to create a trust relationship is a key element in determining the existence of an express trust. Id. A § 523(a)(4) cause of action can be based on a fiduciary relationship other than one arising from an express trust. See Frain, 230 F.3d at 1017; In re Marchiando, 13 F.3d 1111, 1115-16 (7th Cir.1994). “A fiduciary relationship may arise separate from an express trust, ... but it is the substance and character of the debt relationship that determines whether such a fiduciary relationship exists.” Monroe, 304 B.R. at 358. The Seventh Circuit has found that a fiduciary relationship exists for purposes of § 523(a)(4) when there is “a difference in knowledge or power between fiduciary and principal which ... gives the former a position of ascendancy over the latter.” Marchiando, 13 F.3d at 1116; see also In re Woldman, 92 F.3d 546, 547 (7th Cir.1996) (“[Section 523(a)(4) reaches only those fiduciary obligations in which there is substantial inequality in power or knowledge.... ”). For example, a lawyer-client relationship, a director-shareholder relationship, and a managing partner-limited partner relationship all require the principal to “ ‘repose a special confidence in the fiduciary.’ ” Frain, 230 F.3d at 1017 (quoting Marchiando, 13 F.3d at 1116). However, not all fiduciary relationships fall within the purview of § 523(a)(4). Woldman, 92 F.3d at 547. A fiduciary relation qualifies under § 523(a)(4) only if it “imposes real duties in advance of the breach.... ” Marchiando, 13 F.3d at 1116. In other words, the fiduciary’s obligation must exist prior to the alleged wrongdoing. Id. b. Defalcation “Defalcation” is not a defined term in the Bankruptcy Code. One court has defined defalcation within the context of § 523(a)(4) as “the misappropriation of trust funds held in any fiduciary capacity, and the failure to properly account for such funds.” Strube Celery & Vegetable Co., Inc. v. Zois (In re Zois), 201 B.R. 501, 506 (Bankr.N.D.Ill.1996) (internal quotation" }, { "docid": "17569841", "title": "", "text": "relationships where the law imposes fiduciary obligations, such as the obligation an attorney owes to a client or a director owes to shareholders. See Marchiando, 13 F.3d at 1115; see also LSP Investment Partnership v. Bennett (In re Bennett), 989 F.2d 779, 784-85 (5th Cir.1993) (holding that the “technical” or “express” trust requirement is no longer “limited to trusts that arise by virtue of a formal trust agreement, but includes relationships in which trust-type obligations are imposed pursuant to statute or common law”)- Thus, our threshold inquiry is whether Berman & Associates owed Fol-lett a fiduciary obligation through the presence of either an express trust or an implied fiduciary status arising from their contractual relationship. 1. No Express Trust Follett maintains that it has shown sufficient evidence to demonstrate the existence of an express trust settled by Follett, with itself as the beneficiary and Berman & Associates as the trustee, over the years of their contractual relationship. We disagree. In McGee, we described the hallmarks of a trust to include “[segregation of funds, management by financial intermediaries, and recognition that the entity in control of the assets has at most ‘bare’ legal title to them.” 353 F.3d at 540-41. These hallmarks, as well as a demonstration of clear intent to create a trust, can distinguish a trust relationship from an ordinary contractual relationship. See Robert E. Ginsberg, Robert D. Martin & Susan V. Kelley, Ginsberg & Martin on Bankruptcy § 11.06 at 11-112 (5th ed. 2010) (collecting cases). Implied trusts lacking these hallmarks, such as constructive or resulting trusts imposed on transactions as a matter of equity, do not fall within the statutory exception. See Marchiando, 13 F.3d at 1115-16. Unlike express trust arrangements, fiduciary duties arising under constructive or resulting trusts are found to be implied by courts only as a result of existing debts. For a section 523(a)(4) exception to apply, the fiduciary duties must exist prior to the debt. See id.; Carlisle Cashway, Inc. v. Johnson (In re Johnson), 691 F.2d 249, 251-52 (6th Cir.1982) (noting that the term “fiduciary” in the non-dischargeable debt exception does not" }, { "docid": "17540682", "title": "", "text": "400 (Bankr.N.D.Ill.2005) (citing Weber, 892 F.2d at 538; Schaffer v. Dempster (In re Dempster), 182 B.R. 790, 802 (Bankr.N.D.Ill.1995)). A trust or fiduciary relationship need not be established in order to find a debt excepted from discharge by an act of embezzlement. Green v. Pawlinski (In re Pawlinski), 170 B.R. 380, 390 (Bankr.N.D.Ill.1994). A creditor’s debt may be found nondischargeable under the fraud or defalcation prong of section 523(a)(4) if he is able to establish by a preponderance of the evidence that: (1) an express trust or fiduciary relationship existed between him and the debtor; and (2) the debtor committed fraud or defalcation in the course of that relationship. In re Woldman, 92 F.3d 546, 547 (7th Cir.1996); CFC Wireforms, Inc. v. Monroe (In re Monroe), 304 B.R. 349, 358 (Bankr.N.D.Ill.2004); see also Grogan, 498 U.S. at 291, 111 S.Ct. 654 (holding that the standard of proof for dischargeability exceptions under section 523(a) is preponderance of the evidence). An express trust requires an explicit declaration of trust, a clearly defined trust res, and an intention to create a trust. Hanson, 432 B.R. at 774; Monroe, 304 B.R. at 358. In the Seventh Circuit, a fiduciary relationship on which a claim under section 523(a)(4) is based may arise either when there is an express trust or when there is “a difference in knowledge or power between fiduciary and principal which ... gives the former a position of ascendancy over the latter.” In re Marchiando, 13 F.3d 1111, 1116 (7th Cir.1994); see also In re McGee, 353 F.3d 537, 541 (7th Cir.2003) (explaining that “many fiduciary relations are characterized by disparities in the knowledge or economic status of the participants”); Woldman, 92 F.3d at 547; Newsub Magazine Servs. LLC v. Rey (In re Rey), Nos. 04 B 35040, 04 A 4446, 04 A 4443, 2005 WL 894820, at *4 (Bankr.N.D.Ill. Apr. 18, 2005). Only those fiduciary relationships that “impose[ ] real duties in advance of the breach” fall within the scope of section 523(a)(4). Hanson, 432 B.R. at 774 (quoting Marchiando, 13 F.3d at 1116). “Fraud” for purposes of the exception requires" }, { "docid": "3766357", "title": "", "text": "debtor cannot discharge any debt “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny[.]” 11 U.S.C. § 523(a)(4). The meaning of these terms is a question of federal law. In re McGee, 353 F.3d 537, 540 (7th Cir.2003). In order for a creditor to prevail under § 523(a)(4), it must prove that a debtor committed (1) fraud or defalcation while acting as a fiduciary; or (2) embezzlement; or (3) larceny. 11 U.S.C. § 523(a)(4). Count III of Cole-Michael’s complaint alleges that the debt is based on Burke’s acts while acting as a fiduciary. ColeMichael does not specifically allege embezzlement or larceny. Thus, the Court will not discuss the embezzlement or larceny prongs of tortious conduct proscribed under § 523(a)(4). a. Express Trust or Fiduciary Relationship A threshold inquiry is whether an express trust or a fiduciary obligation runs from Burke to ColeMichael under the facts of this matter. The existence of an express trust or fiduciary relationship is tested under federal law standards. O’Shea v. Frain (In re Frain), 230 F.3d 1014, 1017 (7th Cir.2000). An express trust requires an explicit declaration of trust, a clearly defined trust res, and an intent to create a trust. Monroe, 304 B.R. at 358. The intent to create a trust relationship is a key element in determining the existence of an express trust. Id. A § 523(a)(4) cause of action can be based on a fiduciary relationship other than one arising from an express trust. See Frain, 230 F.3d at 1017; In re Marchiando, 13 F.3d 1111, 1115-16 (7th Cir.1994). “A fiduciary relationship may arise separate from an express trust, ... but it is the substance and character of the debt relationship that determines whether such a fiduciary relationship exists.” Monroe, 304 B.R. at 358. The Seventh Circuit has found that a fiduciary relationship exists for purposes of § 523(a)(4) when there is “a difference in knowledge or power between fiduciary and principal which ... gives the former a position of ascendancy over the latter.” Marchiando, 13 F.3d at 1116; see also In re Woldman, 92 F.3d 546, 547" }, { "docid": "20242451", "title": "", "text": "Thus, the Court will not discuss the larceny prong of tortious conduct proscribed under § 523(a)(4). 1. Express Trust or Fiduciary Relationship A threshold inquiry is whether an express trust or a fiduciary relationship runs from the Debtor to the Creditor under the facts of this matter. The existence of an express trust or fiduciary relationship is tested under federal law standards. O’Shea v. Frain (In re Frain), 230 F.3d 1014, 1017 (7th Cir.2000). An express trust requires an explicit declaration of trust, a clearly defined trust res, and an intent to create a trust. Monroe, 304 B.R. at 358. The intent to create a trust relationship is a key element in determining the existence of an express trust. Id. A § 523(a)(4) cause of action can be based on a fiduciary relationship other than one arising from an express trust. See Frain, 230 F.3d at 1017; In re Marchiando, 13 F.3d 1111, 1115-16 (7th Cir.1994). “A fiduciary relationship may arise separate from an express trust, ... but it is the substance and character of the debt relationship that determines whether such a fiduciary relationship exists.” Monroe, 304 B.R. at 358. The Seventh Circuit has found that a fiduciary relationship exists for purposes of § 523(a)(4) when there is “a difference in knowledge or power between fiduciary and principal which ... gives the former a position of ascendancy over the latter.” Marchiando, 13 F.3d at 1116; see also In re Woldman, 92 F.3d 546, 547 (7th Cir.1996) (“[SJection 523(a)(4) reaches only those fiduciary obligations in which there is substantial inequality in power or knowledge.... ”). For example, a lawyer-client relationship, a director-shareholder relationship, and a managing partner-limited partner relationship all require the principal to “ ‘repose a special confidence in the fiduciary.’ ” Frain, 230 F.3d at 1017 (quoting Marchiando, 13 F.3d at 1116). However, not all fiduciary relationships fall within the purview of § 523(a)(4). Woldman, 92 F.3d at 547. A fiduciary relationship qualifies under § 523(a)(4) only if it “imposes real duties in advance of the breach.... ” Marchiando, 13 F.3d at 1116. In other words, the fiduciary’s" }, { "docid": "18585859", "title": "", "text": "order for a fiduciary relationship to exist under 11 U.S.C. § 523(a)(4), there must either be an express or technical trust. Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S.Ct. 151, 79 L.Ed. 393 (1934); In re Cairone, 12 B.R. 60 (Bankr.D.R.I.1981); In re Schultz, 46 B.R. 880 (Bankr.Nev.1985). The trust relationship must exist prior to the defalcation and not arise as a result of it. An express trust has (1) a declaration of trust, (2) a clearly defined trust res, (3) and an intent to create a trust relationship. In re Cairone, supra. A technical express trust may exist by statute. In In re Janikowski, 14 B.C.D. 521, 60 B.R. 784 (Bankr.N.D.Ill.1986) the court specifically found an attorney to hold a fiduciary relationship under 11 U.S.C. § 523(a)(4), as established by disciplinary rules adopted by the state’s highest court. Clearly, an attorney holds a fiduciary capacity to his client, see, Collier, 15th ed. § 523.14, and cases cited therein, and Disciplinary Rule 9-102 adopted as part of Rule 3.07 by the Supreme Judicial Court. The wrong committed by Kwiat in his fiduciary capacity was a defalcation. In Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510, 512 (2d Cir.1937). Judge Hand defined defalcation: All we decide is that when a fiduciary takes money upon a conditional authority which may be revoked and knows at the time it may, he is guilty of a ‘defalcation’, though it may not be a ‘fraud’, or an embezzlement, or perhaps not even a ‘misappropriation.’ The state trial judge found and the Supreme Judicial Court affirmed, Doucette v. Kwiat, 392 Mass. at 917, 467 N.E.2d 1374, that when Doucette signed the settlement agreement, his understanding from discussions with Kwiat was that all attorney’s fees were being paid by the insurance company under the arrangement outlined in the settlement agreement. Therefore, Kwiat breached his agreement when he took, without the client’s permission, an additional fee of $6,866.00 for obtaining the discharge of liens, a normal part of the wrap and settlement of the case. This finding of fact by the state courts" }, { "docid": "3560268", "title": "", "text": "re Katzen, 47 B.R. 738 (Bkrtcy.D.Mass.1985). Does the statute create the basic elements of a trust? Is a res defined? Are fiduciary duties spelled out? In re Pedrazzini, 644 F.2d 756, 759 (9th Cir. 1981); and In re Lipke, 54 B.R. 704 (Bkrtcy.W.D.Wis.1985). Id. at 65-66 (Footnotes omitted). The Seventh Circuit in the case of Matter of Thomas, 729 F.2d 502 (7th Cir. 1984), applied federal standards to a Wisconsin statute without applying Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S.Ct. 151, supra. Thus, state law is important in determining when a trust relationship exists. That is, in determining whether a requisite trust exists, the Court should consult state law although the issue ultimately remains a federal question. In re Short, 818 F.2d 693 (9th Cir.1987); In re Schultz, 46 B.R. 880 (Bankr.D.Nev.1985); In re Niven, 32 B.R. 354 (Bankr.W.D.Okla.1983); In re Ballard, 26 B.R. 981 (Bankr.D.Conn.1983); Matter of Murphy, 9 B.R. 167 (Bankr.Va.1981). The broad, general definition of fiduciary, involving confidence, trust and good faith, is inapplicable in a dischargeability context, thus excluding ordinary commercial relationships from the reach of the section of the Bankruptcy Code excepting from discharge certain debts incurred in a fiduciary capacity. In re Schultz, 46 B.R. 880, supra. It has been repeatedly held that a debt- or is not a fiduciary within the meaning of 11 U.S.C. § 523(a)(4) in the absence of any evidence that an express or technical trust existed between the debtor and the creditor. In re Ballard, 26 B.R. 981, supra; In re Lawther [Lowther], 32 B.R. 638 (Bankr.W.D.Okla.1983); In re Baiata, 12 B.R. 813 (Bankr.E.D.N.Y.1981). However, when a state statute imposes trust-like obligations on parties engaging in certain kinds of contracts the contracting parties may be trustees for purposes of 11 U.S.C. § 523(a)(4). See In re Bacher, 47 B.R. 825 (Bankr.E.D.Pa.1985); In re Gagliano, 44 B.R. 259 (Bankr.N.D.Ill.1984). Based on the foregoing requirements it has also been consistently held that constructive trusts, or those implied by law, that created duties ex maleficio, are not the types of fiduciary relationships that fall under 11 U.S.C. § 523(a)(4)." }, { "docid": "21174447", "title": "", "text": "while acting in a fiduciary capacity, embezzlement, or larceny[.]” 11 U.S.C. § 523(a)(4). The meaning of these terms is a question of federal law. In re McGee, 353 F.3d 537, 540 (7th Cir.2003). In order for the Plaintiffs to prevail under § 523(a)(4), they must prove that the Debtor committed (1) fraud or defalcation while acting as a fiduciary; or (2) embezzlement; or (3) larceny. See 11 U.S.C. § 523(a)(4). The complaint does not specifically identify which prong of § 523(a)(4) is the basis of the Plaintiffs’ claim. Thus, the Court will address each one. 1. Express Trust or Fiduciary Relationship A threshold inquiry is whether an express trust or fiduciary relationship ran from the Debtor to the Plaintiffs under the facts of this matter. The existence of an express trust or fiduciary relationship is tested under federal law standards. In re Frain, 230 F.3d 1014, 1017 (7th Cir.2000). An express or technical trust requires an explicit declaration of trust, a clearly defined trust res, and an intent to create a trust. Monroe, 304 B.R. at 358. Constructive, resulting, and implied trusts do not fall with the confines of § 523(a)(4). In re Marchiando, 13 F.3d 1111, 1115 (7th Cir.1994). A § 523(a)(4) cause of action can be based on a fiduciary relationship other than one arising from an express trust. Frain, 230 F.3d at 1017; Marchiando, 13 F.3d at 1115-16. “A fiduciary relationship may arise separate from an express trust, ... but it is the substance and character of the debt relationship that determines whether such a fiduciary relationship exists.” Monroe, 304 B.R. at 358. The Seventh Circuit has found that a fiduciary relationship exists for purposes of § 523(a)(4) when there is “a difference in knowledge or power between fiduciary and principal which ... gives the former a position of ascendancy over the latter.” Marchiando, 13 F.3d at 1116; see also In re Woldman, 92 F.3d 546, 547 (7th Cir. 1996) (“[SJection 523(a)(4) reaches only those fiduciary obligations in which there is substantial inequality in power or knowledge .... ”). For example, a lawyer-client relationship, a director-shareholder relationship," }, { "docid": "11410380", "title": "", "text": "from Monroe to CFC. The existence of an express trust or fiduciary relationship is tested under federal law standards. See In re Frain, 230 F.3d 1014 (7th Cir.2000). Express trusts require an explicit declaration of trust, a clearly defined trust res, and an intent to create a trust. In re Janikowski, 60 B.R. 784, 789 (Bankr.N.D.Ill.1986); Robert E. Ginsburg & Robert D. Martin, Ginsburg & Martin on Bankruptcy § 11.06[G] at 11-104 (4th ed. Supp 2003). Plaintiff alleges that by virtue of its tender of funds, an express trust relationship was created between it and TRI. Pl.’s Post-Trial Prop. Findings of Fact and Concl. of Law at 12 ¶¶ 72-78. Plaintiff finds support for this contention in Green v. Pawlinski (In re Pawlinski), 170 B.R. 380 (Bankr.N.D.Ill.1994) (Schmetterer, J.) and avers that the case stands for the proposition that an express trust is created where a party acknowledges receipt of a specific amount of money and acknowledges that the money was received for a particular purpose. However, it cannot be found from the evidence in this case that an express trust was created or intended. The intent to create a trust relationship, rather than a contractual relationship, is a key element in determining the existence of an express trust. In re Schultz, 46 B.R. 880 (Bankr.D.Nev.1985). In this case, TRI’s duties arose from a contractual agreement. In that agreement, CFC’s deposit funds were given in exchange for TRI’s performance of its promises and obligations. CFC has not demonstrated, nor is it readily apparent from the documents, how the relationship differed from an ordinary contract relationship requiring payments so as to demonstrate an intent to deposit the monies into a trust. A fiduciary relationship may arise separate from an express trust, In re Marchiando, 13 F.3d 1111, 1115 (7th Cir.1994) (arising from statute), but it is the substance and character of the debt relationship that determines whether such a fiduciary relationship exists. In re Littell, 109 B.R. 874, 881 (Bankr.N.D.Ind.1989). Substantial inequity as to knowledge or power between the parties, fiduciary duties and whether these duties arise independently of any contractual" }, { "docid": "14333215", "title": "", "text": "a state statute has defined a particular relationship as fiduciary. In Re Gagliano, 44 B.R. 259 (Bankr.N.D.Ill.1984) The state statute creating the fiduciary relationship must, however, have imposed a trust on the property and set forth the fiduciary duties. In Re Johnson, 691 F.2d 249, 253 (6th Cir.1981). Further, the debt alleged to be nondischargeable must arise from a breach of the trust obligations imposed by law and not from any breach of contract. Therefore, the trustee’s duties must be independent of the parties’ contractual relationship. In Re Schultz, 46 B.R. 880, 884 (Bankr.Nev.1985). Under Illinois law, an attorney occupies a fiduciary relationship to his client. In Re Czachorski, 41 Ill.2d 549, 244 N.E.2d 164 (1969); Illinois Tool Works Inc. v. Kovac, 43 Ill.App.3d 789, 2 Ill.Dec. 472, 357 N.E.2d 639 (1976). Further, this relationship is not dependent upon the attorney’s acceptance of employment either orally or in writing. The fiduciary relationship existing between a lawyer and client extends to preliminary consultation even though actual employment may not result. Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 353, 58 L.Ed.2d 346 (1978). The lawyer’s duty to his client is to act with the “utmost fairness and good faith.” In Re Kolb, 362 Ill. 190, 193, 199 N.E. 92, 93 (1934). His profession demands “fidelity to his clients with an eye single to their best interest.” People ex rel. Chicago Bar Ass’n. v. Green, 353 Ill. 638, 643, 187 N.E. 811, 813 (1933). Although the courts in interpreting § 523(a)(4) have held the fiduciary relationship must arise from an express or “technical” trust, the outer limits of what may constitute the “trust” have never been clearly defined. Generally, an express trust is created by agreement between the parties to impose a trust relationship. In Re Levitan, 46 B.R. 380, 384 (Bankr.E.D.N.Y.1985). The usual elements of an express trust traditionally have included an explicit declaration of trust, a clearly defined trust res, and an intent to create a trust relationship. In Re Kawczynski, 442 F.Supp. 413 (W.D.N.Y.1977) (citing 89 C.J.S. Trusts §" }, { "docid": "11410381", "title": "", "text": "this case that an express trust was created or intended. The intent to create a trust relationship, rather than a contractual relationship, is a key element in determining the existence of an express trust. In re Schultz, 46 B.R. 880 (Bankr.D.Nev.1985). In this case, TRI’s duties arose from a contractual agreement. In that agreement, CFC’s deposit funds were given in exchange for TRI’s performance of its promises and obligations. CFC has not demonstrated, nor is it readily apparent from the documents, how the relationship differed from an ordinary contract relationship requiring payments so as to demonstrate an intent to deposit the monies into a trust. A fiduciary relationship may arise separate from an express trust, In re Marchiando, 13 F.3d 1111, 1115 (7th Cir.1994) (arising from statute), but it is the substance and character of the debt relationship that determines whether such a fiduciary relationship exists. In re Littell, 109 B.R. 874, 881 (Bankr.N.D.Ind.1989). Substantial inequity as to knowledge or power between the parties, fiduciary duties and whether these duties arise independently of any contractual relationship between the parties, have been found determinative as to existence of a fiduciary relationship. Marchiando, 13 F.3d at 1116; In re Frain, 230 F.3d at 1017 (7th Cir.2000). But those factors were not demonstrated here. The Quotation and Agreement does not contain language showing attributes of a fiduciary relationship, and TRI did not hold any fiduciary duties independent and apart from the contractual agreement. Therefore, CFC has failed to establish the existence of an express trust or fiduciary relationship. Embezzlement and Larceny Embezzlement is defined as the “fraudulent appropriation of property by a person to whom such property has been entrusted or into whose hands it has lawfully come.” In re Weber, 892 F.2d 534, 538 (7th Cir.1989) (quoting Moore v. United States, 160 U.S. 268, 269, 16 S.Ct. 294, 40 L.Ed. 422 (1895)). The creditor must show the debtor appropriated funds for his or her own benefit and the debtor did so with fraudulent intent. In re Weber, 892 F.2d at 538. CFC asserts that it never relinquished ownership of the deposit funds." }, { "docid": "2929184", "title": "", "text": "issue of whether a debt is dischargeable under section 523(a)(4) is a question of federal law, courts also look to state law to determine whether the requisite trust relationship exists. Matter of Bennett, 989 F.2d 779, 784 (5th Cir), cert. denied sub nom., Bennett v. LSP Inv. Partnership, — U.S. -, 114 S.Ct. 601, 126 L.Ed.2d 566 (1993). The traditional definition of fiduciary, involving a person who stands in a special relationship of trust, confidence, and good faith, is “far too broad for the purposes of bankruptcy law.” Matter of Rausch, 49 B.R. 562, 564 (Bankr.D.N.J.1985); see also Ragsdale v. Haller, 780 F.2d 794, 796 (9th Cir.1986). Rather, beginning with the Supreme Court decisions in Chapman v. Forsyth, 43 U.S. (2 How.) 202, 11 L.Ed. 236 (1844) and Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S.Ct. 151, 79 L.Ed. 393 (1934), courts have held that the fiduciary relationship referred to in section 523(a)(4) is limited to instances involving express and “technical” trusts. See, e.g., Matter of Angelle, 610 F.2d 1335, 1338-39 (5th Cir.1980). The reason for this narrow construction is to promote the bankruptcy law’s “fresh start” policy. Id. “Most courts today, however, recognize the ‘technical’ or ‘express’ trust requirement is not limited to trusts that arise by virtue of a formal trust agreement, but includes relationships in which trust type obligations are imposed pursuant to statute or common law.” Bennett, 989 F.2d at 784-85; see also In re Bagel, No. 92-11440F, 1992 WL 477052, *12 (Bankr.E.D.Pa. Dec. 17,1992), aff'd without opinion, 22 F.3d 300 (3d Cir.1994). There are three elements necessary to establish an express trust: (1) a declaration of trust; (2) a clearly defined trust res; and (3) an intent to create a trust relationship. In re Ballantyne, 166 B.R. 681, 686 (Bankr.E.D.Wis.1994); In re Janikowski, 60 B.R. 784, 788 (Bankr.N.D.Ill.1986). Windsor does not, and cannot, argue that the parties had an express trust agreement in this instance. The difficulty, however, lies with the determination of the definition and scope of “technical trusts”. Quaif v. Johnson, 4 F.3d 950, 953 (11th Cir.1993). “An express or technical" }, { "docid": "20242450", "title": "", "text": "670, 676 (7th Cir.1995) (“Reliance means the conjunction of a material misrepresentation with causation in fact.”). See also Westfall, 379 B.R. at 805 (citing Mayer). C. 11 U.S.C. § 523(a)(4) Section 523(a)(4) of the Bankruptcy Code provides that a debtor cannot discharge any debt “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny[.]” 11 U.S.C. § 523(a)(4). The meaning of these terms is a question of federal law. In re McGee, 353 F.3d 537, 540 (7th Cir.2003). In order for a creditor to prevail under § 523(a)(4), he must prove that a debtor committed (1) fraud or defalcation while acting as a fiduciary; or (2) embezzlement; or (3) larceny. 11 U.S.C. § 523(a)(4). Count III of the Creditor’s complaint alleges that the debts at issue are based on the Debtor’s defalcation while acting as a fiduciary. Count IV of the complaint alleges that the Debtor fraudulently appropriated or embezzled the loan proceeds entrusted to him by the Creditor by using those funds for unauthorized purposes. The Creditor does not allege larceny. Thus, the Court will not discuss the larceny prong of tortious conduct proscribed under § 523(a)(4). 1. Express Trust or Fiduciary Relationship A threshold inquiry is whether an express trust or a fiduciary relationship runs from the Debtor to the Creditor under the facts of this matter. The existence of an express trust or fiduciary relationship is tested under federal law standards. O’Shea v. Frain (In re Frain), 230 F.3d 1014, 1017 (7th Cir.2000). An express trust requires an explicit declaration of trust, a clearly defined trust res, and an intent to create a trust. Monroe, 304 B.R. at 358. The intent to create a trust relationship is a key element in determining the existence of an express trust. Id. A § 523(a)(4) cause of action can be based on a fiduciary relationship other than one arising from an express trust. See Frain, 230 F.3d at 1017; In re Marchiando, 13 F.3d 1111, 1115-16 (7th Cir.1994). “A fiduciary relationship may arise separate from an express trust, ... but it is the substance and character of" }, { "docid": "2929185", "title": "", "text": "The reason for this narrow construction is to promote the bankruptcy law’s “fresh start” policy. Id. “Most courts today, however, recognize the ‘technical’ or ‘express’ trust requirement is not limited to trusts that arise by virtue of a formal trust agreement, but includes relationships in which trust type obligations are imposed pursuant to statute or common law.” Bennett, 989 F.2d at 784-85; see also In re Bagel, No. 92-11440F, 1992 WL 477052, *12 (Bankr.E.D.Pa. Dec. 17,1992), aff'd without opinion, 22 F.3d 300 (3d Cir.1994). There are three elements necessary to establish an express trust: (1) a declaration of trust; (2) a clearly defined trust res; and (3) an intent to create a trust relationship. In re Ballantyne, 166 B.R. 681, 686 (Bankr.E.D.Wis.1994); In re Janikowski, 60 B.R. 784, 788 (Bankr.N.D.Ill.1986). Windsor does not, and cannot, argue that the parties had an express trust agreement in this instance. The difficulty, however, lies with the determination of the definition and scope of “technical trusts”. Quaif v. Johnson, 4 F.3d 950, 953 (11th Cir.1993). “An express or technical trust must be either one in which a formal document is executed which establishes the rights and duties of the parties, or one in which trust type obligations are imposed pursuant to state or common law.” In re Johnson, 174 B.R. 537, 541 (Bankr.W.D.Mo.1994). Some courts have determined that state statutes can create a technical trust for purposes of section 523(a)(4). See, e.g., Quaif, 4 F.3d at 953; Carey Dumber Co. v. Bell, 615 F.2d 370, 374 (5th Cir.1980). Other courts have held that state common law can create the requisite fiducia ry relationship. See, e.g., Matter of Marchiando, 13 F.3d 1111, 1115 (7th Cir.), cert. denied sub nom., Illinois Dep’t of Lottery v. Marchiando, — U.S. -, 114 S.Ct. 2675, 129 L.Ed.2d 810 (1994); Bennett, 989 F.2d at 785. Windsor contends that Librandi was a fiduciary for purposes of section 523(a)(4) because he was a fiduciary pursuant to the Pennsylvania Securities Act, 70 P.S. § 1-101 et seq., and the regulations promulgated thereunder, 64 Pa.Code § 305.019. A statutory fiduciary under state law is" }, { "docid": "1193477", "title": "", "text": "Estate Investment Trust, 23 B.R. 62, 7 C.B.C.2d 87 (Bankr.E.D.Va.1982). The express trust and corporate officer lines of cases are not mutually exclusive and can be harmonized. In this district, we have ruled that the existence of an express trust, not merely an implied or constructive trust, is a prerequisite to a finding of § 523 defalcation. In re Bacher, 47 B.R. 825, 829. See also In re Wolfington, 48 B.R. 920, 923. The elements of an express trust have been identified as (1) words necessary to create a trust; (2) a definite subject, and (3) a trust res. Wilmington Trust Co. v. Martin (In re Martin), 35 B.R. 982, 985 (Bankr.E.D.Pa.1984), citing Schlecht v. Thornton, 544 F.2d 1005, 1007 (9th Cir.1976). The trust may flow from consensual agreements between the parties if the parties intended to create a trust rather than a contractual relationship. Wilmington v. Martin, 35 B.R. 982, 985. The wording of a relevant statute may also create a technical express trust. Doucette v. Kwiat (In re Kwiat), 62 B.R. 818, 820 (Bankr.D.Mass.1986) (Disciplinary Rules), citing Purcell v. Janikowski (In re Janikowski), 60 B.R. 784 (N.D.Ill, 1986). See e.g., Home Ins. Co. v. McCormick (In re McCormick), 70 B.R. 49 (Bankr.W.D.Pa.1987) (insurance agents); National Bonding & Accident Ins. Co. v. Petersen (In re Petersen), 51 B.R. 486 (Bankr.D.Kan.1986) (Packers & Stockyards Act); American Ins. Co. v. Lucas (In re Lucas), 21 B.R. 585 (Bankr.W.D.Pa.1982) aff'd., 41 B.R. 923, Bankr.L.Dec. para. 69,-972 (W.D.Pa.1984) (statute governing issuing agents for state fishing licenses); Wilmington v. Martin, 35 B.R. 982 (statute governing contractors). The statute must impose a trust on the subject property and set forth specific fiduciary duties. In re Janikowski, 60 B.R. 784, 788, citing In re Johnson, 691 F.2d 249, 253 (6th Cir.1982). Courts scrutinize these statutes to determine to whom the benefits of the trust run. As the Cowley court noted, “... it has long been settled that a corporate officer is a ‘fiduciary’ of the corporation ...” In re Cowley, 35 B.R. 526, 529, citing Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S.Ct. 141," }, { "docid": "21174446", "title": "", "text": "436 (7th Cir.2002) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991)). In sum, the Debtor has not submitted substantive evidence that negates an essential element of the non-moving Plaintiffs’ claim under § 523(a)(2)(A). Thus, the motion for summary judgment as to Count III of the complaint is denied. C. 11 U.S.C. § 523(a)(4) In Count II of the complaint, the Plaintiffs allege that the Debtor, as a director, shareholder, and key employee, owed a fiduciary duty to GWFS and the Vozellas not to usurp corporate assets and commit corporate waste. According to the Plaintiffs, the Debtor breached her fiduciary duty by surreptitiously causing unauthorized payments for her personal expenses and absconding with GWFS’s business opportunities. Section 523(a)(4) of the Bankruptcy Code states as follows: (a) A discharge under section 727 ... does not discharge an individual debtor from any debt— (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny[.] 11 U.S.C. § 523(a)(4). Section 523(a)(4) provides that a debtor cannot discharge any debt “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny[.]” 11 U.S.C. § 523(a)(4). The meaning of these terms is a question of federal law. In re McGee, 353 F.3d 537, 540 (7th Cir.2003). In order for the Plaintiffs to prevail under § 523(a)(4), they must prove that the Debtor committed (1) fraud or defalcation while acting as a fiduciary; or (2) embezzlement; or (3) larceny. See 11 U.S.C. § 523(a)(4). The complaint does not specifically identify which prong of § 523(a)(4) is the basis of the Plaintiffs’ claim. Thus, the Court will address each one. 1. Express Trust or Fiduciary Relationship A threshold inquiry is whether an express trust or fiduciary relationship ran from the Debtor to the Plaintiffs under the facts of this matter. The existence of an express trust or fiduciary relationship is tested under federal law standards. In re Frain, 230 F.3d 1014, 1017 (7th Cir.2000). An express or technical trust requires an explicit declaration of trust, a clearly defined trust res, and an intent to create a trust. Monroe, 304 B.R." }, { "docid": "11410379", "title": "", "text": "contention that the cancellation letter repudiated the entire agreement and that he therefore had an off-setting claim. The preponderance of evidence did not show that Monroe had fraudulent intent, and he prevails as to the fraud allegation. Fraud, Embezzlement Defalcation and Larceny in Count II 11 U.S.C. § 523(a)(4) provides that a debtor may not receive a discharge from any debt “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” In order for the Creditor to prevail under this provision, plaintiff must prove that the debtor committed (1) fraud or defalcation while acting as a fiduciary; or (2) embezzlement; or (3) larceny. Express Trust or Fiduciary Relationship CFC must therefore establish the existence of an express trust or fiduciary relation, and a debt caused by the Monroe’s defalcation or fraud while acting as a fiduciary. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991); In re Woldman, 92 F.3d 546, 547 (7th Cir.1996). A threshold inquiry is whether an express trust or fiduciary obligation runs from Monroe to CFC. The existence of an express trust or fiduciary relationship is tested under federal law standards. See In re Frain, 230 F.3d 1014 (7th Cir.2000). Express trusts require an explicit declaration of trust, a clearly defined trust res, and an intent to create a trust. In re Janikowski, 60 B.R. 784, 789 (Bankr.N.D.Ill.1986); Robert E. Ginsburg & Robert D. Martin, Ginsburg & Martin on Bankruptcy § 11.06[G] at 11-104 (4th ed. Supp 2003). Plaintiff alleges that by virtue of its tender of funds, an express trust relationship was created between it and TRI. Pl.’s Post-Trial Prop. Findings of Fact and Concl. of Law at 12 ¶¶ 72-78. Plaintiff finds support for this contention in Green v. Pawlinski (In re Pawlinski), 170 B.R. 380 (Bankr.N.D.Ill.1994) (Schmetterer, J.) and avers that the case stands for the proposition that an express trust is created where a party acknowledges receipt of a specific amount of money and acknowledges that the money was received for a particular purpose. However, it cannot be found from the evidence in" }, { "docid": "11410382", "title": "", "text": "relationship between the parties, have been found determinative as to existence of a fiduciary relationship. Marchiando, 13 F.3d at 1116; In re Frain, 230 F.3d at 1017 (7th Cir.2000). But those factors were not demonstrated here. The Quotation and Agreement does not contain language showing attributes of a fiduciary relationship, and TRI did not hold any fiduciary duties independent and apart from the contractual agreement. Therefore, CFC has failed to establish the existence of an express trust or fiduciary relationship. Embezzlement and Larceny Embezzlement is defined as the “fraudulent appropriation of property by a person to whom such property has been entrusted or into whose hands it has lawfully come.” In re Weber, 892 F.2d 534, 538 (7th Cir.1989) (quoting Moore v. United States, 160 U.S. 268, 269, 16 S.Ct. 294, 40 L.Ed. 422 (1895)). The creditor must show the debtor appropriated funds for his or her own benefit and the debtor did so with fraudulent intent. In re Weber, 892 F.2d at 538. CFC asserts that it never relinquished ownership of the deposit funds. Monroe maintains that it was TRI’s intent that the deposit became non-refundable, and thus at all times remained property of TRI, until TRI would substantially fulfill its duties under the Quotation and Agreement. However, the only written agreement between the parties does not specify the circumstances and point in time in which the deposit would become non-refundable or refundable. A reconciliation of the parties positions as to contract interpretation is not necessary; this Adversary does not involve issues of contractual breach nor can either party seek a re-writing of the terms of their agreement. The analysis is rather specifically confined to asserted fraud and liability arising from fraudulent conduct. Given that Monroe’s conduct was at all times consistent with his reasonable understanding of the agreement and the considerable ambiguity as to the exact point in time and circumstances that the deposit may have become refundable, Monroe was not proven to have had the fraudulent intent necessary for embezzlement. Larceny under § 523(a)(4) necessitates a showing that the debtor wrongfully took property from its rightful owner" } ]

[ { "docid": "19969572", "title": "", "text": "these decisions provide the “rule of law” here. As noted, Willsey alleges that the Veterans Court did not, in the case below, apply the rule for determining CUE set out in Russell. The Veterans Court’s short, unpublished decision mentions Russell but makes no attempt to show how Willsey’s claim failed to meet its test. Rather, the Veterans Court decision simply concludes that there was no CUE in the RO decision. Willsey’s contention, then, that the Veterans Court did not apply the rule in Russell is a prima facie legal claim and provides grounds for this Court to take jurisdiction over this case under our “case jurisdiction” standard. Accordingly, this Court may decide all relevant questions of law in this appeal from a decision by the Veterans Court, 38 U.S.C. § 7292(d)(1), and legal determinations of the Veterans Court are reviewed de novo. Premier v. Derwinski, 928 F.2d 392, 393 (Fed.Cir.1991). We may “affirm or, if the decision of the Veterans’ Court is not in accordance with law, ... modify or reverse the decision of the [Veterans Court] or ... remand the matter, as appropriate.” 38 U.S.C. § 7292(e)(1) (2000). Discussion In light of the statutory prohibition against our review of factual determinations or the application of law to the facts of a particular case, 38 U.S.C. § 7292(d)(2), the issue before this court is whether the Veterans Court applied its decision in Russell to the question of whether there was CUE in the 1983 VA Regional Office decision denying Willsey’s application for service connection, not whether the application of that rule to the particular facts of this case was correct. Nonetheless, in order to assess Willsey’s contention that the court did not apply the Russell rule at all, it is necessary to address the facts of the ease, and the court’s analysis of those facts, in some detail. Accordingly, we will consider, in turn, each prong of the Russell test. Willsey first contends that the VA adjudicator who ruled on his application in 1983 did not have before him “the correct facts, as they were known at the time” because," } ]

[ { "docid": "3390920", "title": "", "text": "under the Equal Access to Justice Act (EAJA) because the government’s position before the court was substantially justified. Mr. Heifer contended that the government’s position before the court was not substantially justified, because the government had failed to apprise the court of the adoption of DSM-IV as the applicable authority for the diagnosis of mental disorders, and had failed to modify its litigating position after the issuance of the Cohen decision in March 1997. The court denied Mr. Heifer’s application. II This court has only limited jurisdiction to review rulings of the Court of Appeals for Veterans Claims. Our jurisdictional statute, 38 U.S.C. § 7292, authorizes us to decide “all relevant questions of law,” but provides that except to the extent that an appeal presents a constitutional issue, we may not review “(A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d). Cognizant of our narrow jurisdictional mandate, Mr. Heifer has, in the main, presented his case as a constitutional challenge and a request for an interpretation of a statutory provision. To the extent that he contends, apart from his constitutional claim and his statutory construction arguments, that the Court of Veterans Appeals erred in holding that the government’s position in the litigation before the Court of Veterans Appeals was substantially justified, we lack jurisdiction to address that question. See Stillwell v. Brown, 46 F.3d 1111, 1113 (Fed.Cir.1995). We therefore confine ourselves to the constitutional question and the question of statutory interpretation to which Mr. Heifer devotes most of his attention. A Mr. Heifer’s constitutional argument is that by ruling against him as it did, the Court of Veterans Appeals deprived him of a property interest without due process of law. Much of his argument on this point hints that because the court was mistaken in ruling against him, he was deprived of property (attorneys fees and expenses) to which he was entitled (because he should have been awarded them), without due process of law (ie., without a correct adjudication of" }, { "docid": "20412827", "title": "", "text": "to change its position. The government’s motion for voluntary remand was accompanied by a proposed order stating only that the case was remanded “to enable the Board to reconsider its 1980 and 1982 decisions.” We find that mere voluntary reconsideration does not guarantee Mr. Cushman adequate relief. The terms of the proposed order give no assurance that Mr. Cushman would receive a new hearing, that the determination would be reviewed de novo, or that the proceedings would be conducted without the presence of the altered document. Although the government represents in its supporting memorandum that it will pursue such process, we have no authority to enforce those representations. Moreover, the government’s representations do not bind the Board. We therefore must deny the government’s motion for voluntary remand, even though the government contends that granting the motion would provide Mr. Cushman the alternate relief that he seeks. We also deny the government’s alternative request for “mandatory mediation.” Mr. Cushman did not oppose mediation initially. The government did. We decline to compel Mr. Cushman to mediation at this juncture, after the briefs have been filed, oral arguments have been heard, and the thirty-day suspension to allow settlement has lapsed. We now turn to the merits of Mr. Cushman’s appeal. III. DUE PROCESS This court reviews legal determinations of the Veterans Court de novo. Premier v. Derwinski, 928 F.2d 392, 393 (Fed.Cir.1991). If the decision of the Veterans Court is not in accordance with law, this court has authority to modify, reverse, or remand the case as appropriate. 38 U.S.C. § 7292(e)(1). This court has jurisdiction to interpret constitutional provisions “to the extent presented and necessary to a decision,” id. § 7292(c), and authority to “decide all relevant questions of law, including interpreting constitutional and statutory provisions.” Id. § 7292(d)(1). This court has jurisdiction and authority to consider a free-standing constitutional issue independently from the CUE framework typically applicable to appellate review of veterans’ claims. See In re Bailey, 182 F.3d 860, 869-70 (Fed.Cir.1999). Mr. Cushman asserts that he was denied a full and fair hearing on the factual issues of his claim" }, { "docid": "20412856", "title": "", "text": "to 38 U.S.C. § 7292(c), we have limited jurisdiction to review decisions of the Veterans Court. Boggs v. Peake, 520 F.3d 1330, 1333 (Fed.Cir.2008). Specifically, we possess “exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof ... and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). We also have jurisdiction to review decisions of the Veterans Court on issues of law. Jordan v. Nicholson, 401 F.3d 1296, 1297 (Fed.Cir.2005). However, “[e]xcept to the extent that an appeal ... presents a constitutional issue, [we] may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2). Thus, we only have jurisdiction over Mr. Fagan’s appeal to the extent that it raises issues of law. To the extent that his appeal raises issues of fact or issues of law applied to fact, we do not have jurisdiction to consider his claims. In considering any issues of law properly raised on appeal, we review de novo the decision of the Veterans Court. See Boggs, 520 F.3d at 1334; Summers v. Gober, 225 F.3d 1293, 1295 (Fed.Cir.2000). We set aside the Veterans Court’s interpretations of a regulation if they are found to be “(a) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (b) contrary to constitutional right, power, privilege, or immunity; (c) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (d) without observance of procedure required by law.” 38 U.S.C. § 7292(d)(1). This appeal does not simply present a challenge to factual findings or to the law as applied to the facts. Rather, at least in part, it challenges the Veterans Court’s interpretation of a statutory provision, 38 U.S.C. § 5107(b). Indeed, the Veterans Court itself acknowledged that “[t]his appeal presents a single question— the interpretation and application of the benefit of the doubt doctrine codified at 38 U.S.C." }, { "docid": "5731352", "title": "", "text": "§ 5107(a). Moreover, Mr. Nolen asserts that the Court of Appeals for Veterans Claims, once it decided that his claim was not well grounded, should have remanded his case to the Board for further development of the issue, or at least given him a chance to brief the issue before that court. Mr. Nolen further maintains that the Court of Appeals for Veterans Claims’s failure to do either violated his due process rights, since he had no prior notice that the Court of Appeals for Veterans Claims was planning to address the requirements of the well grounded claim — both the RO and Board had found the claim well grounded and the Government had not challenged that determination before the Court of Appeals for Veterans Claims. DISCUSSION This court has jurisdiction to review a challenge to the validity or interpretation of a statute or regulation relied upon by the Court of Appeals for Veterans Claims. See 38 U.S.C. § 7292. We review independently the Court of Appeals for Veterans Claims’s interpretations of statutory provisions and regulations. See 38 U.S.C. § 7292(a), (c). It is our responsibility to decide all relevant questions of law. See 38 U.S.C. § 7292(d). Except to the extent that an appeal presents a constitutional issue, this court may not review challenges to a factual determination or to the application of a law or regulation to the facts of a particular case. See 38 U.S.C. § 7292(d)(2). The Government, not surprisingly, asserts that Mr. Nolen is challenging only factual determinations or applications of the law to facts. Since such challenges are outside our statutory jurisdiction, the Government argues that we should dismiss Mr. Nolen’s case. However, Mr. Nolen is clearly challenging the Court of Appeals for Veterans Claims’s interpretation of 38 U.S.C. § 5107(a), and we have jurisdiction to consider such challenges to statutory interpretations. We also note that Mr. Nolen’s appeal does not fall afoul of our recent determinations in Smith v. West, 214 F.3d 1331 (Fed.Cir.2000) and Belcher v. West, 214 F.3d 1335 (Fed.Cir.2000) that our jurisdictional statute, 38 U.S.C. § 7292, precludes us from" }, { "docid": "20218411", "title": "", "text": "the file at the time of the 2006 medical evaluations informed the endocrinologist that Mr. Prinkey had had surgery to remove most of his pancreas— information that duplicated the information in the 2001 CT scan. Id. Any possible error in not having the 2001 CT scan before the April 2006 medical examiners was thus harmless. Id. In addition, the Veterans Court rejected Mr. Prinkey’s argument that the 2006 medical opinions lacked sufficient rationale. Id. Rejecting both of Mr. Prinkey’s challenges to the BVA’s decision affirming the severance of service connection under § 3.105(d), the Veterans Court affirmed, and Mr. Prinkey timely appealed to this court. V Regarding appeals from the Veterans Court, we have exclusive jurisdiction to interpret constitutional and statutory provisions and to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof by the Veterans Court. 38 U.S.C. § 7292(a),(c). However, except to the extent that an appeal presents a constitutional issue, we are barred from judicial review of “(A) a challenge to a factual determination, or (B) a challenge to a law or regula tion as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2). As this court explained in Forshey v. Principi, 284 F.3d 1335, 1345 (Fed.Cir.2002) (en banc), before the enactment of § 7292 in 1988, there was virtually no judicial review of decisions by the VA. After extensive debate about the kind of judicial review that should be afforded to veterans, Congress settled on creation of the Veterans Court and on limited review by this court of decisions of the Veterans Court. The Veterans Court, an Article I tribunal, presides over the BVA, and has authority to decide legal issues and factual disputes under a clear error standard of review. 38 U.S.C. § 7261(a). But except for constitutional issues, the language and legislative history of the 1988 statute (creating the Veterans Court and vesting our court with appellate jurisdiction) make clear beyond any possible doubt that this court has no power to resolve any factual dispute in a case decided by the Veterans Court." }, { "docid": "20413210", "title": "", "text": "Circuit finds to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without observance of procedure required by law. (2) Except to the extent that an appeal under this chapter presents a constitutional issue, the Court of Appeals may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case. The Veterans Court specifically reviewed Mr. Edwards’s allegations and found that Mr. Edwards “proffer[ed] little convincing evidence to support his contentions” and did not “point to any evidence in the record to suggest that VA was aware of any incompetence or inability to comprehend.” Edwards, 22 Vet.App. at 35. Mr. Edwards asks this court to reexamine these factual findings in the face of the statutory prohibition against review of “a factual determination.” Nonetheless, this case also “presents a constitutional issue” under the statutory-jurisdiction clause. This court previously addressed the interplay of factual and constitutional issues in In re Bailey, 182 F.3d 860 (Fed.Cir.1999). There, an attorney alleged that the Veterans Court’s decision to pursue disciplinary measures against him and the subsequent disciplinary proceedings violated his due process rights. In examining its jurisdiction under the statute, this court determined: “[s]ince the first issue Bailey raises ‘presents a constitutional issue,’ subsection 7292(d)(2), by negative implication, does authorize this court to review it as to factual matters.” Id. at 868-70. Thus, because Mr. Edwards invokes due process, this court reviews the factual determinations but only to the extent necessary to ensure compliance with due process. The Secretary suggests that Mr. Edwards waived his due process claim by failing to raise it in the lower-court proceedings. Under 38 U.S.C. § 7292(a), “any party ... may obtain a review of the decision with respect to the validity of any statute or regulation ... or any interpretation thereof ... that was relied on by the [Veterans Court]" }, { "docid": "5731353", "title": "", "text": "regulations. See 38 U.S.C. § 7292(a), (c). It is our responsibility to decide all relevant questions of law. See 38 U.S.C. § 7292(d). Except to the extent that an appeal presents a constitutional issue, this court may not review challenges to a factual determination or to the application of a law or regulation to the facts of a particular case. See 38 U.S.C. § 7292(d)(2). The Government, not surprisingly, asserts that Mr. Nolen is challenging only factual determinations or applications of the law to facts. Since such challenges are outside our statutory jurisdiction, the Government argues that we should dismiss Mr. Nolen’s case. However, Mr. Nolen is clearly challenging the Court of Appeals for Veterans Claims’s interpretation of 38 U.S.C. § 5107(a), and we have jurisdiction to consider such challenges to statutory interpretations. We also note that Mr. Nolen’s appeal does not fall afoul of our recent determinations in Smith v. West, 214 F.3d 1331 (Fed.Cir.2000) and Belcher v. West, 214 F.3d 1335 (Fed.Cir.2000) that our jurisdictional statute, 38 U.S.C. § 7292, precludes us from reviewing any issue not “relied upon” by the Court of Appeals for Veterans Claims. Although Mr. Nolen did not argue the issue of well groundedness before the Court of Appeals for Veterans Claims, that court raised the issue sua sponte, and therefore it “relied upon” that issue, bringing it within our jurisdiction. See Smith, 214 F.3d at 1332-33; Belcher, 214 F.3d at 1336-37. The present case implicates issues we considered in our recent decision in Hensley v. West, 212 F.3d 1255, 2000 WL 572713 (Fed.Cir.2000). As we noted in Hensley, the well grounded claim requirement serves a “gatekeeping” function in the claims process — if the veteran presents a well grounded claim to the RO, that triggers the DVA’s statutory duty to assist the veteran in perfecting the claim. See id. at 1260-61. We explained how this requirement weeded out claims completely lacking in merit, and analogized it to Federal Rule of Civil Procedure 12(b)(6), which serves a similar function in civil litigation. See id. at 1260-61 (citing Robinette v. Brown, 8 Vet.App. 69, 75" }, { "docid": "20412828", "title": "", "text": "this juncture, after the briefs have been filed, oral arguments have been heard, and the thirty-day suspension to allow settlement has lapsed. We now turn to the merits of Mr. Cushman’s appeal. III. DUE PROCESS This court reviews legal determinations of the Veterans Court de novo. Premier v. Derwinski, 928 F.2d 392, 393 (Fed.Cir.1991). If the decision of the Veterans Court is not in accordance with law, this court has authority to modify, reverse, or remand the case as appropriate. 38 U.S.C. § 7292(e)(1). This court has jurisdiction to interpret constitutional provisions “to the extent presented and necessary to a decision,” id. § 7292(c), and authority to “decide all relevant questions of law, including interpreting constitutional and statutory provisions.” Id. § 7292(d)(1). This court has jurisdiction and authority to consider a free-standing constitutional issue independently from the CUE framework typically applicable to appellate review of veterans’ claims. See In re Bailey, 182 F.3d 860, 869-70 (Fed.Cir.1999). Mr. Cushman asserts that he was denied a full and fair hearing on the factual issues of his claim due to the presence of the altered medical record. Mr. Cushman therefore raises a genuine issue of procedural due process under the Fifth Amendment to the Constitution. Cf. Pierre v. West, 211 F.3d 1364, 1367 (Fed.Cir.2000). We find that this court has jurisdiction to resolve the due process issue in deciding his claim. In order to allege that the denial of his claim involved a violation of his due process rights, Mr. Cushman must first prove that as a veteran alleging a service-connected disability, he has a constitutional right to a fundamentally fair adjudication of his claim. The right to due process of applicants for veterans’ benefits is an issue of first impression for this court. The Due Process Clause of the Fifth Amendment guarantees that an individual will not be deprived of life, liberty, or property without due process of law. U.S. Const, amend. V. Due process of law has been interpreted to include notice and a fair opportunity to be heard. See Mullane v. Cent. Hanover Tr. Co., 339 U.S. 306, 313, 70" }, { "docid": "21227938", "title": "", "text": "(2) has signed a statement that his right to make such a claim has been explained to him, or has refused to sign such a statement. 10 U.S.C. § 1218(a). The Veterans Court rejected McGee’s argument and held that the Board was not required to consider 10 U.S.C. § 1218 because “[it] is not an applicable provision of law within the meaning of 38 U.S.C. § 7104(a).” McGee, 20 Vet.App. at 475. The Veterans Court described its decision as “a determination as to whether the Board complied with its statutory obligation in light of its failure to consider a particular law not found within title 38 of the U.S.Code.” Id. at 475 n. 3* It further reasoned that “ § 1218 imposes no obligation upon the Secretary of Veterans Affairs and fails to provide for any remedy in the veterans-benefits context.” Id. at 475. McGee timely appealed to this Court. II. DISCUSSION A. Standard of Review The jurisdiction of this court to review decisions of the Veterans Court is limited by statute. 38 U.S.C. § 7292; Forshey v. Principi, 284 F.3d 1335, 1338 (Fed.Cir.2002) (en banc). Under § 7292(c), we have “exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation, or any interpretation thereof’ by the Veterans Court. See also Forshey, 284 F.3d at 1338. Constitutional and statutory interpretations by the Veterans Court are reviewed de novo. Santana-Venegas v. Principi, 314 F.3d 1293, 1296 (Fed.Cir.2002). This court is limited by its jurisdictional statute and, absent a constitutional issue, may not review challenges to factual determinations or challenges to the application of a law or regulation to facts. 38 U.S.C. § 7292(d)(2). Because McGee challenges the Veterans Court’s interpretation of a statute, we have jurisdiction pursuant to 38 U.S.C. § 7292(c). B. Analysis McGee submits that the Veterans Court upheld the Board’s decision under an erroneous interpretation of “applicable” as used in 38 U.S.C. § 7104(a). He argues that the plain meaning of “applicable” is “relevant.” Because 10 U.S.C. § 1218 indicates that McGee’s service personnel file may contain evidence that tends to establish" }, { "docid": "2913784", "title": "", "text": "Act of 2000 (“VCAA”), 38 U.S.C. § 5103(a), and failed to provide this notice prior to the initial denial of his claim. In a decision dated August 25, 2005, the Veterans Court found that there was a plausible basis in the record for the Board’s decision denying service connection. The Veterans Court also found that Mr. Sanders did not allege any specific prejudice resulting from the VA’s alleged failure to notify him about who would ultimately be responsible for obtaining the evidence necessary to substantiate his claim, and to provide notice before the initial unfavorable decision by the VARO. Because Mr. Sanders did not meet the burden of showing how such errors affected the fairness of the adjudication, the Veterans Court stated that it need not consider whether any error occurred. Mr. Sanders appeals to this court. We have jurisdiction over appeals from the Veterans Court pursuant to 38 U.S.C. § 7292. II. DISCUSSION A. Standard of Review In reviewing a Veterans Court decision, this court must decide “all relevant questions of law, including interpreting constitutional and statutory provisions.” 38 U.S.C. § 7292(d)(1). We must set aside any regulation or interpretation thereof, “other than a determination as to a factual matter,” relied upon by the Veterans Court that is “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without observance of procedure required by law.” Id. We review questions of statutory interpretation de novo. Summers v. Gober, 225 F.3d 1293, 1295 (Fed.Cir.2000). Except to the extent that an appeal presents a constitutional issue, this court “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2). B. History of the VCAA At the center of Mr. Sanders’s appeal are the notice requirements of the VCAA. The VCAA was enacted in November 2000 to ensure that the VA" }, { "docid": "16399486", "title": "", "text": "relevant part, that after the Veterans Court renders a decision in a case, any party to the case “may obtain a review of the decision with respect to the validity of any statute or regulation ... or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision.” Our jurisdiction is explained in 38 U.S.C. § 7292(d)(1), which states that we have authority to review, and “hold unlawful and set aside,” if warranted, “any regulation or any interpretation thereof (other than a determination as to a factual matter) that was relied upon in the decision of the [Veterans Court].” 38 U.S.C. § 7292(d)(1) (1994 & Supp. V 1999). The Secretary argues that Mr. Graves is simply challenging the Veterans Court’s application of Rules 5 and 42 to the facts of his case, the type of matter that is beyond the scope of our jurisdiction. See 38 U.S.C. § 7292(d)(2)(1994) (“Except to the extent that an appeal under this chapter presents a constitutional issue, the Court of Appeals may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.”) We are not persuaded by the Secretary’s jurisdictional argument. In Forshey v. Principi, 284 F.3d 1335 (Fed.Cir.2002) (en banc), we stated that, under section 7292(a), we have jurisdiction to review a decision of the Veterans Court if that review invokes “issues of interpretation,” in other words, “if the [Veterans Court] elaborated the meaning of a statute or regulation and the decision depended on that interpretation,” or if the review involves “issues of validity or interpretation raised before the [Veterans Court] but not decided, if the decision would have been altered by adopting the position that was urged.” Id. at 1338. We explained that “we have jurisdiction to consider the ... interpretation of all statutes or regulations that ‘bear upon or properly apply to’ the issues before us.” Id. at 1351-52. In this case, Mr. Graves argued to the Veterans Court that, under Rules" }, { "docid": "19328466", "title": "", "text": "2 (Bd.Vet.App. Sept. 9, 2003). The Board then remanded the case to the Regional Office for additional medical examinations based on its determination that disability ratings should be based on “the present level of disability.” Id. at 3-5. Kirkpatrick appealed the Board’s remand order to the Veterans’ Court. On appeal, the Secretary of Veterans Affairs (“the Secretary”) filed a motion to dismiss on the basis that the Board’s remand order that was the subject of the appeal was not a final decision. Kirkpatrick opposed that motion. The Veterans’ Court granted the Secretary’s motion to dismiss, holding that a Board remand is not a final decision over which the Veterans’ Court has jurisdiction. The Veterans’ Court also rejected Kirkpatrick’s alternative argument that it should treat his opposition as a petition for extraordinary relief. Kirkpatrick v. Principi, 18 Vet.App. 543 (Vet.App.2004). Kirkpatrick appeals from the decision of the Veterans’ Court. We have jurisdiction pursuant to 38 U.S.C. § 7292. II. DISCUSSION A. Standard of Review The scope of this court’s review of a decision of the Veterans’ Court is governed by 38 U.S.C. § 7292(d). In accordance with the statute, this court “shall decide all relevant questions of law, including interpreting constitutional and statutory provisions.” 38 U.S.C. § 7292(d)(1) (2000). This court reviews an interpretation of a statute by the Veterans’ Court de novo. Jones v. Brown, 41 F.3d 634, 637 (Fed.Cir.1994). However, except to the extent an appeal raises a constitutional issue, we “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2) (2000). B. Analysis The Secretary challenges this court’s jurisdiction, arguing that the case is not ripe for judicial review because the agency’s decision is not final. We address this question first because it pertains to our own jurisdiction. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“ ‘On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of" }, { "docid": "15790199", "title": "", "text": "reconsideration by the Acting Chairman of the Board, [Mr. Santoro’s notice of appeal] should be “deemed to be received” then, and hence timely. In view of this motion, Mr. Santoro did not file a brief with the Court of Appeals for Veterans Claims on the issue of equitable tolling. The Court of Appeals for Veterans Claims held, nevertheless, that the doctrine of equitable tolling did not apply, and dismissed Mr. Santoro’s appeal for lack of jurisdiction as untimely filed. Mr. Santoro filed a motion for reconsideration, seeking opportunity to argue for application of equitable tolling. The Court of Appeals for Veterans Claims denied the motion to reconsider. Mr. Santoro appeals the Court of Appeals for Veterans Claims’ dismissal. He argues that the Court of Appeals for Veterans Claims misconstrued 38 U.S.C. § 7266, and erred in refusing to treat as timely the July 1998 notice of appeal under the presumption that the VA General Counsel’s office acted with administrative regularity. Mr. Santoro also argues that the Court of Appeals for Veterans Claims denied him due process of law when it dismissed his appeal without again directing him to argue for application of equitable tolling. II. This court reviews the Court of Appeals for Veterans Claims’ interpretation of statutes without deference to the extent presented and necessary for a decision. 38 U.S.C. § 7292(d) (1994); Epps v. Gober, 126 F.3d 1464, 1466-67 (Fed.Cir.1997); Premier v. Derwinski, 928 F.2d 392, 393 (Fed.Cir.1991). This review includes questions of statutory jurisdiction. 38 U.S.C. § 7292(a), (c) (1994); Wick v. Brown, 40 F.3d 367, 370 (Fed.Cir.1994). Furthermore, this court narrowly construes jurisdictional statutes. Wick, 40 F.3d at 370. This court does not review a challenge to a factual determination made by the Secretary or the Board of Veterans’ Appeals, or the application by the Court of Appeals for Veterans Claims of law to factual situations. 38 U.S.C. §§ 7261(c), 7292(d)(2) (1994); Bustos v. West, 179 F.3d 1378, 1380 (Fed.Cir.1999). Title 38 imposes specific requirements for preservation of a veteran’s right of appeal to the Court of Appeals for Veterans Claims: (1) In order to obtain" }, { "docid": "8377302", "title": "", "text": "determined that it was not, stating, “it is clear that ordinary attorney neglect, such as missing a filing deadline, does not rise to the level of an extraordinary circumstance, and thus does not warrant equitable tolling.” Id. (quoting Irwin, 498 U.S. at 96, 111 S.Ct. 453). The court held that Mr. Vacura’s actions were nothing more than “garden variety neglect.” Id. The court also held that Mr. Nelson could not satisfy the due diligence requirement of the extraordinary circumstances test because he had not pursued his case with due diligence. Id. at 554-55. Accordingly, the Veterans Court dismissed Mr. Nelson’s appeal for lack of jurisdiction. Id. This appeal followed. DISCUSSION I. We have exclusive jurisdiction to “review and decide any challenge to the validity of any statute or regulation or any interpretation thereof’ by the Veterans Court “and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). However, except to the extent that an appeal from the Veterans Court presents a constitutional issue, we may not review a challenge to a factual determination or a challenge to a law or regulation as applied to the facts of a particular case. Id. § 7292(d). Pertinent to our jurisdiction, we have held that consideration of equitable tolling presents an inquiry into the interpretation of the Veterans Court’s jurisdictional statute and thus is within the scope of our jurisdiction: We have consistently held that “when the material facts are not in dispute and the adoption of a particular legal standard would dictate the outcome of the equitable tolling claim, this court has treated the question of the availability of equitable tolling as a matter of law that we are authorized by statute to address.” Mapu v. Nicholson, 397 F.3d 1375, 1379 (Fed.Cir.2005) (quoting Bailey v. Principi, 351 F.3d 1381, 1384 (Fed.Cir.2003) (citing Jaguay v. Principi, 304 F.3d 1276, 1289 (Fed.Cir.2002) (en banc))). Because the issue before us is whether equitable tolling is available under 38 U.S.C. § 7266(a) in a case of excusable neglect, we have jurisdiction to decide whether equitable tolling is" }, { "docid": "12107653", "title": "", "text": "“intent to apply” for benefits from his mere listing of symptoms. Id. As the court observed, Mr. Ellington listed five symptoms on VA Form 21-2545. Id. Yet, he only claimed service connection for two of those five symptoms, without providing any methodology by which the VA could distinguish symptoms for which service connection was claimed from those for which it was not claimed. Id. Thus, the Veterans Court concluded, Mr. Ellington’s statements on VA Form 21-2545 in 1993 did not constitute an informal claim, and he therefore could not claim an entitlement date earlier than September 10, 1998 for his secondary conditions. Id. at 146-47. DISCUSSION I. Pursuant to 38 U.S.C. § 7292(c), we have limited jurisdiction to review decisions of the Veterans Court. Boggs v. Peake, 520 F.3d 1330, 1333 (Fed.Cir.2008). Specifically, we possess “exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof ... and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c) (2000). We also have jurisdiction to review decisions of the Veterans Court on issues of law. Jordan v. Nicholson, 401 F.3d 1296, 1297 (Fed.Cir.2005). However, “[ejxcept to the extent that an appeal ... presents a constitutional issue, [we] may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2). Thus, we have jurisdiction to hear Mr. Ellington’s appeal only to the extent that it raises issues of law. To the extent that Mr. Ellington’s appeal raises issues of fact or issues of law applied to fact, we do not have jurisdiction to consider his claims. In considering any issues of law properly raised by Mr. Ellington’s appeal, we review de novo the decision of the Veterans Court. Boggs, 520 F.3d at 1334; Summers v. Gober, 225 F.3d 1293, 1295 (Fed.Cir.2000). We set aside the Veterans Court’s conclusions on an issue of law if they are found to be “(a) arbitrary, capricious, an abuse" }, { "docid": "20438519", "title": "", "text": "of sovereign immunity that the Federal Circuit undertook in Bailey and reaffirmed in Jaguay. Id. at 222 (Schoe-len J., dissenting). Mr. Henderson timely appealed to this court, and a panel heard oral argument on June 5, 2009. Recognizing that the case raised the question of whether Bowles requires or suggests that we overrule previous en banc holdings of our court, we granted rehearing en banc sua sponte on June 29, 2009. Henderson v. Shinseki, 327 Fed.Appx. 901 (Fed.Cir.2009). The single question posed to the en banc court is this: Does the Supreme Court’s decision in Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), require or suggest that this court should overrule its decisions in Bailey v. West, 160 F.3d 1360 (Fed.Cir.1998) (en banc), and Jaquay v. Principi, 304 F.3d 1276 (Fed.Cir.2002) (en banc), holding that 38 U.S.C. § 7266 is subject to equitable tolling? DISCUSSION I. Under 38 U.S.C. § 7292(c), we have jurisdiction “to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof ... and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” Pursuant to 38 U.S.C. § 7292(d)(1), we “decide all relevant questions of law, including interpreting constitutional and statutory provisions.” However, absent a constitutional issue, we “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2). As we stated in Bailey, “[bjecause our review of this decision involves a question of statutory interpretation — namely the ability of the [Veterans Court] to equitably toll a particular statutory time limit and thereby exercise jurisdiction over a late-filed notice of appeal— we have jurisdiction over this matter.” 160 F.3d at 1362. The question of whether § 7266(a) is subject to equitable tolling is a question of law and is reviewed de novo. See id,.; see also 38 U.S.C. § 7292(d)(2). II. A. Before turning to the contentions of the parties and our analysis, we examine Bailey, Jaquay," }, { "docid": "20429547", "title": "", "text": "he might otherwise be entitled to for a period of time. Id. Mr. Reizenstein appeals the Veterans Court’s decision with respect to the applicability of § 3.343(a). We have jurisdiction under 38 U.S.C. § 7292. II. DISCUSSION We review interpretation of regulations by the Veterans Court de novo and may set aside any regulation or interpretation of a regulation that we find to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to a constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or without observation of a procedure required by law. Smith v. Nicholson, 451 F.3d 1344, 1347 (Fed.Cir.2006). Absent a constitutional issue, our jurisdictional statute, 38 U.S.C. § 7292, prohibits us from reviewing a challenge to a factual determination or a challenge to a law or regulation as applied to the facts of a particular case. 38 U.S.C. § 7292(d)(2). As a threshold matter, we note that Mr. Reizenstein does not — and, because of our limited jurisdiction, likely cannot — argue on appeal that the May 6, 1999 VA treatment note is insufficient to support a conclusion that he was not totally disabled as of that date. Instead, his argument is that regardless of the sufficiency of the evidence, the VA is prohibited by regulation from ending the total disability period of his staged rating without complying with 38 C.F.R. § 3.343(a). Our review is confined to the narrow issue of whether § 3.343(a) applies to periods of total disability assigned as part of a retrospective staged rating. We are not asked to review any other of the panoply of statutory and regulatory provisions relating to VA ratings decisions, whether prospective or retrospective. The evidentiary protections afforded thereby remain in place. Mr. Reizenstein presents the issue on appeal as a conflict between the VA’s regulation, § 3.343(a), and staged ratings, which he characterizes as a “judicially created rule of law.” According to Mr. Reiz-enstein, the staged ratings “rule of law” was created by the Veterans Court in Fenderson v." }, { "docid": "7507001", "title": "", "text": "8 Vet.App. at 515-16. Mr. Terry now appeals the decision of the Veterans Court upholding 38 C.F.R. § 3.303(c) and affirming the denial of his claim. On appeal, Mr. Terry urges that section 3.303(c) is invalid as applied to his claim for service connection for presbyopia. ANALYSIS I. Jurisdiction and Standard of Review Our jurisdiction to review decisions of the Veterans Court is limited by statute. 38 U.S.C. § 7292; Forshey v. Principi, 284 F.3d 1335, 1338 (Fed.Cir.2002) {en banc). We have “exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof brought under [section 7292], and to interpret constitutional and statutory provisions to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). Our authority extends to deciding all relevant questions of law and we can set aside a regulation or an interpretation of a regulation relied upon by the Court of Appeals for Veterans Claims when we find it to be “arbitrary, capricious, and an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations; or in violation of a statutory right; or without observance of procedure required by law.” Jones v. West, 194 F.3d 1345, 1349 (Fed.Cir.1999); see 38 U.S.C. § 7292(d)(1). Our authority does not extend to the ability to review factual determinations or the application of a law or regulation to a particular set of facts, unless a constitutional issue is presented. 38 U.S.C. § 7292(d)(2). No factual issues are presented in this case. The sole issue on appeal is Mr. Terry’s challenge to the validity of 38 C.F.R. § 3.303(c). Because Mr. Terry challenges the validity of a regulation, we have jurisdiction pursuant to 38 U.S.C. § 7292. The Veterans Court’s rejection of that challenge presents an issue of law that we review de novo. Santana-Venegas v. Principi, 314 F.3d 1293, 1296 (Fed.Cir.2002). II. Mr. Terry’s Challenge to the Validity of 38 C.F.R. § 3.303(c) On appeal, Mr. Terry argues that, to the extent it prohibits" }, { "docid": "20218191", "title": "", "text": "the Board. Sneed v. Shinseki, 2012 WL 4464874, at *2, 2012 U.S.App. Vet. Claims LEXIS 2062, at *3-4 (Vet.App. Sept. 27, 2012) (“Veterans Court Decision”) (quoting Bove, 25 Vet-App. at 140) (internal quotation marks omitted). Rather, because Ms. Eagle had informed Ms. Sneed that she was “not required to have an attorney” to file her notice of appeal, and because Ms. Eagle was “not a VA official,” the court held Ms. Sneed’s twenty-nine-day-late filing “evideneefd] general negligence or procrastination,” precluding equitable tolling in her case. Id. at *2 & n. 1, 2012 U.S.App. Vet. Claims LEXIS 2062, at *4 & n. 1. After the dismissal, Ms. Sneed’s counsel withdrew, and Ms. Sneed filed a pro se motion for reconsideration, which the Veterans Court denied. Ms. Sneed, with new counsel, timely appealed to this court. DISCUSSION I. Our jurisdiction to review decisions of the Veterans Court is limited by statute. Pursuant to 38 U.S.C. § 7292(a), this court has jurisdiction to review “the validity of a decision of the [Veterans] Court on a rule of law or of any statute or regulation ... or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the [Veterans] Court in making the decision.” Except to the extent that a constitutional issue is presented, this court may not review “a challenge to a factual determination,” or “a challenge to a law or regulation as applied to the facts of a particular case.” Id. § 7292(d)(2)(A)-(B). The Veterans Court’s legal determinations are reviewed de novo. Cushman v. Shinseki, 576 F.3d 1290, 1296 (Fed.Cir.2009). This court has jurisdiction over the proper interpretation of 38 U.S.C. § 7266(a), the filing provision at issue in this case. Santana-Venegas v. Principi, 314 F.3d 1293, 1298 (Fed.Cir.2002). “[Consideration of equitable tolling” presents an issue of statutory interpretation of § 7266(a). Nelson v. Nicholson, 489 F.3d 1380, 1382 (Fed.Cir.2007). On appeal, Ms. Sneed argues the Veterans Court incorrectly interpreted § 7266(a) by ruling out attorney abandonment as a potential basis for equitable tolling. The Secretary argues that Ms. Sneed is actually challenging the Veterans" }, { "docid": "20413209", "title": "", "text": "1997. In January 2008, the Veterans Court affirmed the Board’s decision finding that: (1) the RO had provided Mr. Edwards with adequate notice and the opportunity to present objections; (2) no tailored notice was required; and (3) the statutory deadlines applicable to determinations of effective dates for service disabilities are not subject to equitable tolling. Mr. Edwards timely appealed. II. As a threshold matter, this court must assess jurisdiction over this appeal. See Yarway Corp. v. Eur-Control USA, Inc., 775 F.2d 268, 273 (Fed.Cir.1985) (“[Tjhis court must always consider its jurisdiction.”). Our jurisdiction over decisions by the Veterans Court is governed by 38 U.S.C. § 7292 which states in relevant part: (d)(1) The Court of Appeals for the Federal Circuit shall decide all relevant questions of law, including interpreting constitutional and statutory provisions. The court shall hold unlawful and set aside any regulation or any interpretation thereof (other than a determination as to a factual matter) that was relied upon in the decision of the [Veterans Court] that the Court of Appeals for the Federal Circuit finds to be— (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without observance of procedure required by law. (2) Except to the extent that an appeal under this chapter presents a constitutional issue, the Court of Appeals may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case. The Veterans Court specifically reviewed Mr. Edwards’s allegations and found that Mr. Edwards “proffer[ed] little convincing evidence to support his contentions” and did not “point to any evidence in the record to suggest that VA was aware of any incompetence or inability to comprehend.” Edwards, 22 Vet.App. at 35. Mr. Edwards asks this court to reexamine these factual findings in the face of the statutory prohibition against review of “a factual determination.” Nonetheless, this case also" } ]

[ { "docid": "18288326", "title": "", "text": "found that Title 28, U.S.C. Section 1343, provided the requisite jurisdiction and that plaintiffs-appellants stated a claim for which relief could be granted under Title 42, U.S.C., Section 1983. Hall, et al. v. Garson, et al., 5 Cir. 1970, 430 F.2d 430. On remand, the district court denied the injunctive relief requested and dismissed the complaint by an unreported memorandum decision. Fuentes v. Shevin, 1972, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556, was decided by the Supreme Court subsequent to the instant appeal, but before oral argument. That case was a logical extension of the constitutional principles applied in Goldberg v. Kelly, 1970, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, and Sniadach v. Family Finance Corp., 1969, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349. On the authority of Fuentes we hold that Tex.Rev.Stat.Ann. Art. 5238a works “a deprivation of property without due process of law insofar as [it denies] the right to a prior opportunity to be heard before chattels are taken from their possessor”. 407 U.S. at 96, 92 S.Ct. at 2002, 32 L.Ed.2d at 579. In Fuentes the Supreme Court invalidated Florida and Pennsylvania statutes which provided for the summary seizure of goods in a person’s possession under a writ of replevin to be issued upon the ex parte application of any other person who claimed a right to them and posted a security bond. The Court found the constitutional infirmity to be the complete absence of prior notice and opportunity to be heard to the party in possession of the property, and held that such violation of due process could be cured only by providing adequate safeguards at a meaningful time and in a meaningful manner so as to obviate the danger of an unfair or mistaken deprivation of property. Here we have no such protections. Art. 5238a clothes the apartment operator with clear statutory authority to enter into another’s home and seize property contained therein. This makes his actions those of the State. Screws v. United States, 1945, 325 U.S. 91, 110-111, 65 S.Ct. 1031, 1039-1040, 89 L.Ed. 1495, 1507-1508;" } ]

[ { "docid": "22997320", "title": "", "text": "TRASK, Circuit Judge: These two cases present appeals from contrary results reached by two district courts on the question of the constitutional due process rights of debtors whose property is repossessed by self-help, without formal legal proceedings. The Adams case is before this court on an interlocutory appeal by the Southern California First National Bank (S. Cal. Bank) from an order of the District Court of the Southern District of California granting Adams’ motion for partial summary judgment. The trial court concluded first that •the enactment of sections 9503 and 9504 of the California Commercial Code set forth a state policy constituting sufficient state action “to raise a federal question” under the provisions of the Civil Rights Act, 42 U.S.C. § 1983, and its jurisdictional counterpart, 28 U.S.C. § 1343(3). From that position it concluded that the repossessions denied the plaintiffs their constitutional rights and that sections 9503 and 9504 “which provide for such takings” are constitutionally invalid. This court has jurisdiction under 28 U.S.C. § 1292(b), the trial judge having certified that his order involves a controlling question of law, and a panel of this court having granted leave to appeal. The controlling questions of law are whether the repossession of motor vehicles by self-help on default of a payment contract which provides for such repossession, is an act under color of state law, and thus gives rise to a claim under 42 U.S.C. § 1983, in view of the provisions of sections 9503 and 9504 of the California Commercial Code and is thus state action within the meaning of the Fourteenth Amendment; and whether such sections are unconstitutional as state action which authorizes summary repossession without affording due process. The Hampton case involves an appeal from an order of the District Court for the Northern District of California dismissing appellant’s complaint challenging the prejudgment summary repossession procedure for lack of jurisdiction over the subject matter. The appeal from the decision in the consolidated cases from the Southern District was joined with the appeal from the decision of the Northern District in this court. Plaintiff-appellee Adams had been a" }, { "docid": "970879", "title": "", "text": "the vehicle. On or about October 7, 1971, the seller assigned the conditional sales contract to the defendant bank, State National Bank of Connecticut. After seven instal-ments, the plaintiff defaulted and made no payments for June, July or August, 1972. On or about August 23, 1972, the defendant repossessed the automobile. On November 30, 1972, the defendant moved to dismiss the complaint for failure to state a claim pursuant to 42 U.S. C. § 1983 upon which relief could be granted and for lack of subject matter jurisdiction under 28 U.S.C. § 1343. On April 2, 1973, Judge Newman, having heard the parties, dismissed the complaint on the former ground, finding “no action under color of state law.” On April 3, 1973, the judgment appealed from was entered. The initial, and here the key question is whether or not the defendant Bank’s peaceful repossession of the plaintiff’s automobile on August 23, 1972, constitutes “state action” so as to support a claim under 42 U.S.C. § 1983. Since the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed.2d 835 (1883), it has been recognized that the Fourteenth Amendment applies only to actions of the “States” and not to actions which are “private.” The “under color of state law” provision in section 1983 is equivalent to the state action requirement of the Fourteenth Amendment. Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 n. 7, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) ; United States v. Price, 383 U.S. 787, 794-795 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966). The existence of state action appears significantly in prejudgment seizures where a state official participates in the action which is the subject of complaint. Thus, in Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), a court clerk’s ex parte issuance of a summons, pursuant to a Wisconsin statute authorizing prejudgment garnishment of wages, provided a sufficient intrusion of the State to constitute state action. In Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), state statutes authorized" }, { "docid": "22997326", "title": "", "text": "hearing on an order to show cause. Following settlement of the dispute between the Bank and Hampton, the trial judge for the Northern District of California on his own motion dismissed the case for lack of subject matter jurisdiction, finding that the state action required for jurisdiction in the federal courts under 28 U.S.C. § 1343(3) was lacking. An appeal was taken which has been consolidated with the appeal in the Adams case. The issue on these appeals is whether prejudgment self-help repossession of secured property, as provided for in the security agreements between the creditors and the debtors and as authorized under sections 9503 and 9504 of the California Commercial Code involves sufficient state action to establish a federal cause of action. Adams and Hampton invoke the jurisdiction of the federal courts pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3), claiming that the summary repossession procedures constitute action taken “under col- or of state law” within the meaning of the Fourteenth Amendment. If the repossession was not state action but only an individual invasion of individual rights, then the remedy is not the subject of the Fourteenth Amendment. Civil Rights Cases, 109 U.S. 3, 11, 3 S.Ct. 18, 27 L.Ed. 835 (1883). Adams also asserts federal question jurisdiction under 28 U.S.C. § 1331. Both Adams and Hampton allege that California authorizes, regulates and participates in self-help repossessions by means of a pervasive statutory scheme which sets forth, inter alia,, the basic right to repossess summarily; several terms which must appear in retail installment contracts; the procedures to be followed during and after repossessions; licensing requirements for a person in the business of repossessing; and provisions that clear title to the repossessed vehicle and permit the creditor to obtain a deficiency judgment. Both allege that the Code provisions embrace a state policy encouraging self-help repossession, and conclude that by sanctioning self-help repossession in statutory form, California has “significantly” involved itself in the repossession process. Additionally, both debtors contend that Code § 9503 vests in the secured party a function normally performed by the State, and that §" }, { "docid": "13326849", "title": "", "text": "v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), as suggesting that “state action” encompasses any abdication by the state of “the power to decide that your rights are greater that another’s.” Although Fuentes clearly involved state action, the plurality opinion nonetheless spoke of a state’s abdication of effective control over “state power.” However, contrary to what the district court suggested, the “state power” to which Fuentes referred was the use of state power in the form of state officers to accomplish the seizures for the creditor. The plurality opinion recognized that at common law a creditor could “invoke state power” through the action of debt or detinue or alternatively a “creditor could . proceed without the use of state power, through self-help, by ‘distraining’ the property before a judgment.” The dissent in Fuentes also read the majority opinion as clearly distinguishing between state action and purely private action such as repossession: “It would appear that creditors could withstand the attack under today’s opinion simply by making clear in the controlling credit instruments that they may retake possession without a hearing, or, for that matter, without resort to judicial process at all.” 407 U.S. at 102, 92 S.Ct. at 2005. Thus, we find no support for the contention that the State of Pennsylvania has delegated a traditional state function. We therefore conclude that appellees have failed to show the requisite “state action” necessary to support a claim under 42 U.S.C. § 1983. Accord, James v. Pinnix, No. 73-1866, 495 F.2d 206 (5th Cir., filed June 10, 1974); Nichols v. Tower Grove Bank, No. 73-1621, 497 F.2d 404 (8th Cir., filed May 13, 1974); Nowlin v. Professional Auto Sales, Inc., No. 73-1348 and Mayhugh v. Bill Allen Chevrolet Co., No. 73-1450, 496 F.2d 16 (8th Cir., filed April 25, 1974); Shirley v. State National Bank, No. 73-1783, 493 F.2d 739 (2nd Cir., filed Feb. 14, 1974); Adams v. Southern California First National Bank, 492 F.2d 324 (9th Cir. 1973). The order of the district court of November 8, 1973 granting the declaratory relief specified in the first sentence" }, { "docid": "13326850", "title": "", "text": "instruments that they may retake possession without a hearing, or, for that matter, without resort to judicial process at all.” 407 U.S. at 102, 92 S.Ct. at 2005. Thus, we find no support for the contention that the State of Pennsylvania has delegated a traditional state function. We therefore conclude that appellees have failed to show the requisite “state action” necessary to support a claim under 42 U.S.C. § 1983. Accord, James v. Pinnix, No. 73-1866, 495 F.2d 206 (5th Cir., filed June 10, 1974); Nichols v. Tower Grove Bank, No. 73-1621, 497 F.2d 404 (8th Cir., filed May 13, 1974); Nowlin v. Professional Auto Sales, Inc., No. 73-1348 and Mayhugh v. Bill Allen Chevrolet Co., No. 73-1450, 496 F.2d 16 (8th Cir., filed April 25, 1974); Shirley v. State National Bank, No. 73-1783, 493 F.2d 739 (2nd Cir., filed Feb. 14, 1974); Adams v. Southern California First National Bank, 492 F.2d 324 (9th Cir. 1973). The order of the district court of November 8, 1973 granting the declaratory relief specified in the first sentence of this opinion will be reversed with directions that the district court dismiss appellees’ complaint for failure to state a claim under 42 U.S.C. § 1983 upon which relief can be granted. . The sections in question are: 69 Pa.Stat. § 623 (Repossession), § 624 (Reinstating of Contract After Repossession), § 625 (Redemption and Termination of Contract After Repossession), § 626 (Sale of Motor Vehicle After Repossession), and § 627 (Deficiency Judgment). . The sections in question are: 12A Pa.Stat. § 9-503 (Secured Party’s Right to Take Possession After Default), and § 9-504 (Secured Party’s Right to Dispose of Collateral After Default; Effect of Disposal). . Appellants contend that the district court’s judgment is even broader in scope, but in view of our disposition of this case, we need not reach this question. . 28 U.S.C. § 1343(3). . The sale contracts received in evidence in this case provided: “a. ‘In the event the buyer defaults . . . the seller . . . may take immediate possession of said property without demand . ." }, { "docid": "844393", "title": "", "text": "subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . E. g., Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (court clerk’s ex parte issuance of a summons, pursuant to Wisconsin statute authorizing prejudgment garnishment of wages, provided a sufficient intrusion on the part of State to constitute “state action”); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (clerk’s ex parte issuance of writ of replevin and its prejudgment execution by state official pursuant to state law constituted “state action”); North Georgia Finishing, Inc. v. Di-Chem, 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975) (similar to Sniadach except that prejudgment garnishment statute did not apply to wages); Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974) (in upholding prejudgment assignment statute on finding of no “state action,” court emphasized the absence of state participation). . E. g., Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974); Male v. Crossroads Associates, 469 F.2d 616, 621 (2d Cir. 1972). . For the significance of the distinction between a statute which authorizes otherwise impermissible conduct and one which, in regulating previously lawful conduct, acknowledges its lawfulness see Shirley v. State National Bank, 493 F.2d 739 (2d Cir. 1974) and Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974). In Shirley the court found no “state action” where, upon the default of the buyer, a car was repossessed through self-help in accordance with the terms of the contract of sale. The court reasoned that, although the repossession was effected pursuant to the terms of a New York statute, the statute was merely regulatory, since the right to repossess property without a hearing in this type of situation had been recognized prior to the enactment of the statute, and that, therefore, the repossession was not" }, { "docid": "20550100", "title": "", "text": "for defendant credit union, repossessed the plaintiff’s truck. On December 18, 1970, plaintiff surrendered his 1968 automobile to the creditor in exchange for the return of the truck. Before considering the constitutional aspects of the present controversy this court must direct its attention to the question of its jurisdiction to decide the matter. Plaintiffs have asserted two bases for the founding of jurisdiction in this court: first, federal question jurisdiction under 28 U.S.C. § 1331; and second, jurisdiction under the Civil Rights Act, 28 U.S.C. § 1343 and 42 U.S.C. § 1983. The request for a statutory three-judge court pursuant to 28 U.S.C. § 2281 et seq. is inapposite in this case, since no action of either a state or local officer is sought to be restrained, and thus the specific requirements of that statute are not met. See Klim v. Jones, 315 F.Supp. 109 (N.D.Cal.1970). The federal question purportedly raised here is whether the summary repossession of plaintiffs' property constitutes a taking without due process of law. The constitutional provision under which this action is alleged to arise and with which this court concerns itself is the due process clause of the Fourteenth Amendment, which provides that no state shall take any action which shall deprive the individual of property without due process of law. The Civil Rights sections also asserted by plaintiffs provide for a judicial remedy where one is deprived of any constitutional or statutory right by any person acting “under color of state law.” It is fundamental, therefore, that for jurisdiction to lie on either ground, some significant state involvement in the alleged wrongful acts must be shown; the conduct of private individuals, however wrongful or discriminatory, does not come within the purview of those sections if the state has in no way authorized, sanctioned, or encouraged it. Southern California First National Bank, defendant in the Adams case, No. 71-345-N, has challenged this court’s jurisdiction on the basis that under the facts of these cases no state action or action under color of state law can be shown. What is involved here, they state, are private" }, { "docid": "22997370", "title": "", "text": "at 432 n. 1), there was no indication in the case that any such agreement had been made. . 2 F. Pollock & F. Maitland, The History of English Law 574 (2d ed. 1899). . See Pollock, note 34, supra. . Accord, Pease v. Havelock National Bank, 351 F.Supp. 118, 122 (D.Neb.1972). It may also be argued that no debtor would reasonably think that in repossessing the unpaid-for vehicle, the creditor was acting as an arm of the state. Cf. Grafton v. Brooklyn Law School, 478 F.2d 1137, 1143 (2d Cir. 1973). BYRNE, District Judge (dissenting). Both Adams and Hampton sought relief under 42 U.S.C. § 1983 on the grounds that the creditor banks acted “under color of law” and deprived them of “due process of law” by repossessing their automobiles pursuant to Cal.Comm.C. § 9503 and selling those vehicles pursuant to Cal.Comm.C. § 9504. The majority opinion holds in favor of the creditor banks on the “under color of law” issue and apparently considered it unnecessary to discuss the “due process of law” issue. It is my view that the debtors should prevail on both issues. Regarding the “due process of law” issue, even the creditors appear to concede that, if they did act “under color of law,” the debtors were deprived of due process of law because no judicial hearing was conducted prior to the summary self-help procedures utilized. Undoubtedly, the creditors’ apparent concession on the “due process of law” issue is compelled by the recent case of Fuentes v. Shevin, 407 U.S. 67, 86-87, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) where the Supreme Court stated: “The appellants who signed conditional sales contracts lacked full legal title to the replevied goods. The Fourteenth Amendment’s protection of ‘property,’ however, has never been interpreted to safeguard' only the rights of undisputed ownership. Rather, it has been read broadly to extend protection to ‘any significant property interest,’ Boddie v. Connecticut, 401 U.S. 371, at 379 [91 S.Ct. 780, 28 L.Ed.2d 113], including statutory entitlements. See Bell v. Burson, 402 U.S. 535, at 539, 91 S.Ct. 1586, 29 L.Ed.2d 90; Goldberg" }, { "docid": "970903", "title": "", "text": "brother Friendly in his oft cited lecture, The Dartmouth College Case and The Public-Private Penumbra (1968) at 18, since the “ . . . private action [self-help repossession] has resulted in a general and serious denial of values the [Fourteenth] Amendment was meant to protect. . . . ” Accordingly, finding the Bank’s summary seizure of plaintiff’s auto permeated with the necessary “state action,” I would reverse. . As in Fuentes v. Shevin, 407 U.S. 67, 94-96, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), the fact that the plaintiff signed a form contract which authorized self-help repossession will not immunize a seizure, under a waiver theory, where it is otherwise defective because the property is seized without prior notice and an opportunity for a hearing. The absence of consent in the taking itself cannot be cured by resorting to the meaningless ritual of utilizing a contract of adhesion in which the fine print, even if read, fails to mention that the debtor has any right to a pre-seizure hearing. . The majority’s holding in Adams v. Southern Cal. First Nat’l Bank, 492 F.2d 324 (9th Cir. 1973), similarly rests on the premise that “mere codification” of the common law cannot supply the requisite “state action.” . N.Y. Lien Law § 200 et seq. (McKinney’s Consol.Laws, c. 33, Supp.1972). . L. Hall, Possessory Liens in English Law 67 (1917). . See Uniform Commercial Code § 9-202. . Although I agree with the authors’ reasoning, I cannot accept their resolution of this anomaly — to consider both self-help repossession and the sale of liened goods outside the purview of the Due Process Clause. W. Burke & D. Reber, supra, 47 S.Cal.L.Rev. at 46. Rather, in rejecting the attenuated subtleties that dictated the respective rights of debtors and creditors at common law, I would follow our holding in Hernandez v. European Auto Collision, Inc., supra, and demand that the requirements of due process must be met here as well. . Although we have before us only the bare bones of the complaint, it is undisputed that the plaintiff was not notified in advance" }, { "docid": "7675067", "title": "", "text": "MEMORANDUM OPINION AND ORDER VanARTSDALEN, District Judge. Plaintiffs, Betty and Bernard Smith, instituted this civil rights action under Section 1983, Title 42 U.S.C., to enjoin defendant, Bekins Moving and Storage Co., from conducting a warehouseman’s sale of plaintiffs’ stored possessions pursuant to Section 7-210 of the Pennsylvania Uniform Commercial Code. Pa. Stat. tit. 12A § 7-210. Plaintiffs contend that this provision is unconstitutional because it fails to comply with the basic procedural due process requirements enunciated in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). Under Section 7-210, a warehouseman may enforce his lien on stored property to satisfy unpaid charges by selling the property at a public or private sale. Although Section 7-210 requires notice to all persons known to claim an interest in the goods, no provision is made for a hearing prior to sale, judicial or otherwise. On this ground, plaintiffs argue that the statute is constitutionally deficient. After a hearing on May 31, 1974, a preliminary injunction was entered staying the scheduled Bekins sale. In reaching the conclusion that the plaintiffs would probably succeed on the ultimate merits of the case, reliance was based in part on the decision of Judge Bechtle in Gibbs v. Titelman, 369 F.Supp. 38 (E.D.Pa.1973), which held that certain state statutory provisions authorizing creditors to summarily repossess and sell property subject to a valid security agreement without prior notice and opportunity for a hearing violated due process. On appeal, the Third Circuit reversed the Gibbs decision in an opinion filed August 1, 1974. Gibbs v. Titelman, 502 F.2d 1107 (3d Cir. 1974). In. that opinion, the Third Circuit did not reach the clue process issue holding that the actions of the creditors under the challenged statutes were not actions “under color of state law”. Therefore, no cause of action under Section 1983 of the Civil Rights Act was alleged. Citing Gibbs, defendant Bekins has moved to dismiss the instant complaint for failure to state a claim upon which relief can be granted on the ground that it fails to satisfy one of the elemental requirements of" }, { "docid": "22004671", "title": "", "text": "New York, 214 F.Supp. 283, 287 (S.D.N.Y.1963), aff’d, 327 F.2d 131 (2d Cir. 1964). A federal district court has no appellate jurisdiction over state court decisions and “[m]erely characterizing defendants’ conduct [in using state court procedures] as conspiratorial or unlawful does not set out allegations upon which relief can be granted under the Civil Rights Act.” Hill v. McClellan, 490 F.2d 859, 860 (5th Cir. 1974); see Sykes v. State of California (Department of Motor Vehicles), 497 F.2d 197, 202 (9th Cir. 1974); Pickering v. State Finance Corp., 332 F.Supp. 1399, 1403 (D.Md.), aff’d, 450 F.2d 881 (5th Cir.), cert. denied, 405 U.S. 931, 92 S.Ct. 987, 30 L.Ed.2d 806 (1971). The key issue presented in the plaintiff’s section 1983 cause of action relates to whether the defendants acted under “color of state law” amounting to “state action” and whether the defendants’ actions deprived the plaintiff of “rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C.A. § 1983 (1974). Applying the above authorities to the facts in this case, it appears that the plaintiff’s section 1983 claim should be dismissed because the resort to state courts by private parties does not amount to action under color of state law and does not raise a constitutional question. There are, however, some exceptions to that general rule and state court prejudgment remedies fall into one of the exceptions. “Self help” repossessions are generally held to not be under color of state law. E. g., Adams v. Southern California First National Bank, 492 F.2d 324 (9th Cir. 1974); Kirksey v. Theilig, 351 F.Supp. 727 (D.Colo.1972). The court has, however, been unable to find a section 1983 case where prejudgment attachment or garnishment through state court procedures has been held not to be under color of state law. Several different theories may be used to classify prejudgment attachment or garnishment as state action. Note, Sniadach, Fuentes, and Mitchell: A Confusing Trilogy and Utah Prejudgment Remedies, 1974 Utah L.Rev. 536, 548-52; see 18 A.L.R.Fed. 223 (1974). Regardless of the rationale, federal courts are uniform in either declaring or assuming that such prejudgment" }, { "docid": "432406", "title": "", "text": "must demonstrate: “The terms of § 1983 make plain two elements that are necessary for recovery. First, the plaintiff must prove that the defendant has deprived him of a right secured by the ‘Constitution and laws’ of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right ‘under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.’ This second element requires that the plaintiff show that the defendant acted ‘under color of law.’ ” Adickes v. S. H. Kress Co. (1969) 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142. Most recently, the Supreme Court struck down state replevin statutes which afforded no hearing before repossession by the seller for nonpayment of installment charges. Fuentes v. Shevin (1972) 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556. There the repossession stemmed from state statutes, and it was held that these statutes were constitutionally infirm because the purchaser had no right to a hearing of any sort before being deprived of possession of the household goods which were replevined. The Court seemingly left open the type of hearing which was required, because it is said at 407 U.S. 86, 92 S.Ct. 1997: “The Fourteenth Amendment draws no bright lines around three-day, 10-day or 50-day deprivations of property. Any significant taking of property by the State is within the purview of the Due Process Clause. While the length and consequent severity of a deprivation may be another factor to weigh in determining the appropriate form of hearing, it is not decisive of the basic right to a prior hearing of some kind.” Lynch v. Household Finance Corp. (1972) 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424, had to do with prejudgment garnishment statutes. It was before the Court on review of a dismissal by the lower 3-judge court for the assigned reasons that, (a) 42 U.S.C. § 1983 and 28 U.S.C. § 1343 created no jurisdiction over property rights, and (b) the relief prayed would violate the anti-injunction statute, 28 U.S.C. § 2283. The Supreme Court reversed on both" }, { "docid": "7675071", "title": "", "text": "other circuit courts in cases dealing with similar self-help creditor remedy statutes. See, e. g., Nichols v. Tower Grove Bank, 497 F.2d 404 (8th Cir. 1974); Nowlin v. Professional Auto Sales, Inc., 496 F.2d 16 (8th Cir. 1974); James v. Pinnix, 495 F.2d 206 (5th Cir. 1974); Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974); Shirley v. State National Bank of Connecticut, 493 F.2d 739 (2d Cir. 1974); Adams v. Southern California First National Bank, 492 F.2d 324 (9th Cir. 1973); Bichel Optical Laboratories, Inc. v. Marquette National Bank, 487 F.2d 906 (8th Cir. 1973). See also Fletcher v. Rhode Island Hospital Trust National Bank, 496 F.2d 927 (1st Cir. 1974). Applying this “state action” standard, the Gibbs court concluded that the repossession and sale provisions of the Pennsylvania Motor Vehicle Sales Finance Act and the Pennsylvania Uniform Commercial Code did not satisfy the “state action” requirements of Section 1983 under any of the above theories. Section 9-504 of the Pennsylvania Uniform Commercial Code, which was one of the provisions involved in Gibbs, authorized secured parties to sell, lease or otherwise dispose of collateral after default in satisfaction of the indebtedness secured by the security interest. The Third Circuit held that this section failed to meet the “state action” requirements of Section 1983. Section 7-210 of the Pennsylvania Uniform Commercial Code, which is under attack here, authorizes a warehouseman to sell stored items in satisfaction of unpaid charges. The creditor rights conferred by these sections are virtually identical. The procedural requirements for sale are also substantially identical. If the actions of secured parties in selling collateral under Section 9-504 are considered private actions and not “under color of state law,” then the actions of warehousemen in selling stored items under Section 7-210 must also be considered private actions. It must be noted that the Gibbs court specifically limited its holding to situations in which the contracts and agreements in issue also authorized the self-help remedies utilized. Gibbs, supra 502 F.2d at 1113 n. 15a. In the instant case, the storage contract entered into between plaintiffs and defendant specifies that" }, { "docid": "20550102", "title": "", "text": "contracts whose terms are self-executing. Unlike cases involving garnishment, replevin, claim and delivery, attachment, or distraint procedures, we deal here with repossession, which is a self-help remedy: the creditor, either by himself or by means of a private collection agency, may enter the premises of a debtor, remove the designated collateral, and dispose of it, all without the aid of any state official. Nor are these acts of repossession solely dependent on statutory authorization as, for example, liens under Innkeeper’s Lien laws. Rather, repossession is specifically provided for in a signed security agreement between the parties. Thus, argue the defendants, the taking is pursuant to private agreement with no state involvement on which to found jurisdiction. This court cannot agree, and finds the situation governed by the reasoning of the Supreme Court in Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967). That ease affirmed the constitutional infirmity of a clause in the California Constitution which prohibited restrictions on an individual’s right to sell property to whomever he chooses. The Supreme Court found that this provision, enacted as a repealer of California’s various anti-discriminatory housing legislation, actually served as state encouragement of private discriminations. Hence, despite the fact that all parties to the controversy in Reitman were private individuals not connected with the state and that no state personnel were concerned, the Court found in the mere enactment ot the statute state involvement sufficient to bring the alleged discriminatory acts within the purview of the Fourteenth Amendment. The cases here under consideration present an analogous situation. The repossessions complained of as violations of due process were ostensibly private acts pursuant to a contract. However, it cannot be seriously questioned that the presence of Sections 9503 and 9504 had a significant impact on the contents of that contract’s provisions. The specific reference to the Uniform Commercial Code in the Adams contract and to “immediate possession . . . according to law” in the Posadas contract are ample indication that in drawing up the agreements defendant creditors were “persuaded or induced to include” repossession by the fact that" }, { "docid": "6294884", "title": "", "text": "indicates that there was no hearing to determine either contractual obligations or the rights to possession. Turner contends that the Tennessee statute is unconstitutional and that it authorizes a deprivation of property without due process. He principally relies on Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), which held that notice and a hearing are required before the execution of a prejudgment writ of replevin. According to the appellant, the Tennessee statute allows a creditor to circumvent the requirements of notice and hearing and yet replevy his property. He contends that although the case ostensibly involves private conduct, the presence of state action is indicated by the fact that the state has intervened, authorized and encouraged repossession by secured creditors by conferring upon them special powers and exemptions from legal requirements placed on all others. Appellant also argues that the Tennessee statute, similar to the replevin statutes in Fuentes, deprives the debtor of his rights to notice and an opportunity to be heard. The waiver provision contained in the contract does not, appellant contends, necessarily exclude the requirements of notice and a judicial hearing on the issue of the waiver prior to the repossession. The waiver provision allows the creditor to take possession upon default. Before we consider the constitutional dimensions of the matter before us, we must first examine the key question of jurisdictional requisites. The concept of state action as required by the Fourteenth Amendment has been found to be virtually synonymous with the “under color of state law” requirement of § 1983. United States v. Price, 383 U.S. 787, 794-795 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966); Palmer v. Columbia Gas of Ohio, Inc., 479 F.2d 153, 161 (6th Cir. 1973). But cf., Adickes v. S. H. Kress & Co., 398 U.S. 144, 211, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (Brennan, J., concurring and dissenting). Appellant would have us hold that the self-help repossession which took place upon the default on a private contract providing for such repossession is an act under color of state law and thus constitutes" }, { "docid": "22997356", "title": "", "text": "539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 11972); and Evans v. Abney, 396 U.S. 435, 90 S.Ct. 628, 24 L.Ed.2d 634 (1970). . This factor is what distinguishes these cases from Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), because there in enforcing the creditor’s writ of replevin, issued summarily by a court clerk, a state officer seized the repossessed goods. Some of the evils are still present —no state official participates in the decision to repossess, nor does one evaluate the need for immediate seizure, nor does one review the basis for the claim to repossession —but because control over state power has not been abdicated, the State here does not act in the dark. Cf. Fuentes, supra, 407 U.S. at 93, 92 S.Ct. 1983. . California did not enact the Uniform Conditional Sales Act and the courts in this area were dependent upon case law and terms of the agreement. Upon the buyer’s default, the seller could repossess under the terms of the contract, or if this right was not expressly given, it could have been implied. See, e. g., Johnson v. Kaeser, 196 Cal. 686, 694-695, 239 P. 324 (1925); Miller v. Steen, 34 Cal. 138, 144 (1867); I-Iines, Rights and Remedies Under California Conditional Sales, 23 Cal.L.Rev. 557 (1935). . 2 Gilmore, Security Interests in Personal Property § 44.1, at 1212 (1965); Uniform Conditional Sales Act § 16, comment; 2 F. Pollack & F. Maitland, History of English Law, at 574-77 (2d ed. 1899). . “The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.” California Civil Code § 22.2 (West 1954). . Moose Lodge v. Irvis, 407 U.S. 163, 173, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 18 L.Ed.2d 830. (1967); Burton" }, { "docid": "7675070", "title": "", "text": "600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). In the absence of direct state involvement, the Gibbs court concluded that the mere passage of a self-help creditor remedy statute did not in and of itself constitute “state action” unless the state, by enacting the legislation, had formed a “symbiotic relationship” with creditors within the doctrine of Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), or had encouraged and fostered the self-help creditor activities within the doctrine of Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967) and Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), or had delegated a traditional state function within the doctrine of Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966). A similar “state action” approach has been taken by other circuit courts in cases dealing with similar self-help creditor remedy statutes. See, e. g., Nichols v. Tower Grove Bank, 497 F.2d 404 (8th Cir. 1974); Nowlin v. Professional Auto Sales, Inc., 496 F.2d 16 (8th Cir. 1974); James v. Pinnix, 495 F.2d 206 (5th Cir. 1974); Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974); Shirley v. State National Bank of Connecticut, 493 F.2d 739 (2d Cir. 1974); Adams v. Southern California First National Bank, 492 F.2d 324 (9th Cir. 1973); Bichel Optical Laboratories, Inc. v. Marquette National Bank, 487 F.2d 906 (8th Cir. 1973). See also Fletcher v. Rhode Island Hospital Trust National Bank, 496 F.2d 927 (1st Cir. 1974). Applying this “state action” standard, the Gibbs court concluded that the repossession and sale provisions of the Pennsylvania Motor Vehicle Sales Finance Act and the Pennsylvania Uniform Commercial Code did not satisfy the “state action” requirements of Section 1983 under any of the above theories. Section 9-504 of the Pennsylvania Uniform Commercial Code, which was one of the provisions involved in Gibbs, authorized" }, { "docid": "13974927", "title": "", "text": "that we therefore lack subject matter jurisdiction under 28 U.S.C. § 1343 and 42 U.S.C. § 1983. They refer us to the dismissal of a similar suit, brought by this appellant against certain attorneys, police officers, a New Hampshire bank and its officers, and the Attorney General of New Hampshire, Dieffenbach v. Buckley, 464 F.Supp. 670 (D.N.H.1979). That suit, challenging the power of sale mortgage foreclosure procedures of New Hampshire, was dismissed by the District Court for the District of New Hampshire for failure to show state action, apparently because the New Hampshire mortgage statutes do not create the power of sale foreclosure but merely serve to regulate and standardize an otherwise recognized practice. The New Hampshire district court cited a number of cases, including Charmicor, Inc. v. Deaner, 572 F.2d 694 (9th Cir. 1978), and Roberts v. Cameron-Brown Co., 556 F.2d 356 (5th Cir. 1977), which have held that such a non-judicial foreclosure under a private power of sale does not constitute state action. Of course, the district court also referred to Flagg Brothers v. Brooks, 436 U.S. 149, 98 S.Ct. 1729 (1978), the recent Supreme Court case interpreting the state action requirement in the context of the New York warehouseman’s lien. Flagg Brothers held that a warehouseman’s proposed sale of goods entrusted to him for storage pursuant to his lien over the goods, as authorized by the New York Uniform Commercial Code, was not state action. The Court distinguished North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), all imposing procedural restrictions on creditors’ remedies, by pointing to the failure in Flagg Brothers to allege the participation of any public officials in the proposed sale. 436 U.S. at 157, 160 n.10, 98 S.Ct. at 1734. Given “[t]his total absence of overt official involvement,” the Court reasoned, state action could be found only if the acts of private parties could fairly be" }, { "docid": "13726238", "title": "", "text": "the United States District Court and, by leave, plaintiffs were permitted to file an amended complaint on October 16, 1973. Jurisdiction was premised under 28 U.S.C. §§ 1331(a), 1343(3), 1343(4), 2201, 2202, and 42 U.S.C. § 1983. Plaintiffs sought a judgment declaring (a) that N.D.C.C. Chap. 32 — 08 was unconstitutional on its face and (b) that the seizure of plaintiffs’ residence and automobile did not comport with the requirements of due process as guaranteed by the fourteenth amendment. Additionally, plaintiffs sought actual and punitive damages, but did not seek injunctive relief. The state court proceedings have been stayed pending the determination of this case. Clearly, we must focus upon three recent Supreme Court decisions, Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); and Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), particularly the Mitchell case. The rights of prejudgment creditors were first significantly eroded in Sniadach v. Family Finance Corp., supra, where the Court overturned a Wisconsin statute which allowed a debtor’s wages to be garnished by a court summons issued by the court clerk on the request of a creditor. The debtor was not accorded a hearing before the seizure and was unable to quash the garnishment suit. Mr. Justice Douglas held that there were no extraordinary circumstances justifying such a summary procedure, and that therefore the Wisconsin statute denied the debtor due process. He also emphasized the drastic consequences a wage garnishment may have upon the debtor, consequences which could “drive a wage-earning family to the wall.” 395 U.S. at 341-342, 89 S.Ct. at 1823. In Fuentes v. Shevin, supra, the Supreme Court extended the Sniadach reasoning to summary prejudgment remedies other than garnishment, overturning Florida and Pennsylvania replevin statutes. The Court in Fuentes pointed out that the Florida statute did not require the applicant to make a convincing showing before seizure that the goods were, in fact, “wrongfully detained.” 407 U.S. at 73-74, 92 S.Ct. 1983. Rather, the" }, { "docid": "6294888", "title": "", "text": "property without due process of law in violation of the Fourteenth Amendment. Subsequently, the Supreme Court in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), speaking through Mr. Justice Stewart, held that certain state statutes providing for the summary seizure of personal property by means of a prejudgment replevin procedure involving the sheriff’s execution of a writ issued by a court clerk violated the due process clause of the Fourteenth Amendment insofar as it denied a debt- or the right to notice and the opportunity for a hearing prior to the loss of any possessory interest in that personal property. However, in the recent case of Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), it would appear that Fuentes has been effectively overruled. See concurring opinion of Powell, J., id. at 623, 94 S.Ct. 1895, and the dissenting opinion of Stewart, J., id. at 629, 94 S.Ct. 1895. In Mitchell, judicial sequestration procedures in Louisiana, similar to the replev-in statutes struck down in Fuentes, allowed a creditor to obtain, on an ex parte basis from a judicial authority, a writ of sequestration upon submission of an affidavit and posting of a security bond. Thereupon a public official, without providing notice and a hearing to the debtor, seized the property. Distinguishing judicial control over the process from the court clerk’s control in Fuentes, the Supreme Court found the procedure was not invalid. Prior to Mitchell, the challenge to the Commercial Code’s self-help repossession provisions generated considerable litigation. However, the only federal appellate courts to have met the issue to date have failed to find significant state action present. Gibbs v. Titelman, 502 F.2d 1107 (3rd Cir., filed August 1, 1974); James v. Pinnix, 495 F.2d 206 (5th Cir., 1974); Nowlin v. Professional Auto Sales, Inc., 496 F.2d 16 (8th Cir. 1974), citing Bichel Optical Laboratories, Inc. v. Marquette National Bank, 487 F.2d 906 (8th Cir. 1973); Shirley v. State National Bank of Connecticut, 493 F.2d 739 (2d Cir., 1974); Adams v. Southern California First National Bank, 492 F.2d" } ]

[ { "docid": "12988683", "title": "", "text": "Rule 11 Sanctions? Judge Cordova imposed sanctions against Bamford for violating the strictures of Bankruptcy Rule 9011. That rule permits an award of sanctions against a person who signs a pleading in violation of the rule, the represented party, or both. Bankr.R. 9011(a). As explained in the advisory committee note to the rule, this means that the court has discretion to impose sanctions “on either the attorney, the party the signing attorney represents, or both.” Bamford executed the petition and other pleadings in this ease in his capacity as president of the Debt- or. Therefore, he contends that since he is neither the represented party (the Debtor), nor the Debtor’s attorney, he cannot be held liable under the plain language of the rule. Because this issue is determinative of his appeal, I address it first. There is conflicting authority whether the officer of a corporation who signs a pleading in his official capacity may be held liable personally for Rule 9011 sanctions. Bamford relies on two cases to support his position that he is not subject to sanctions: Caldwell v. Farris (In re Rainbow Magazine, Inc.), 136 B.R. 545 (9th Cir. BAP 1992), and Business Guides, Inc. v. Chromatic Communica tions Enterprises, Inc., 498 U.S. 533, 111 S.Ct. 922, 112 L.Ed.2d 1140 (1991). In Rainbow Magazine, the bankruptcy court assessed sanctions jointly and severally against a corporate debtor and the debtor’s chief executive officer for filing a bad faith Chapter 11 bankruptcy petition. Both parties appealed. The appellate panel affirmed the sanctions as to the debtor, but reversed in part as to the corporate officer. First, it noted that the plain language of Rule 9011 “does not contemplate sanctions against a person who is neither a person who signed the offending pleading nor a party.” 136 B.R. at 552. This conclusion, it reasoned, was compelled by the Supreme Court’s view, expressed in Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 110 S.Ct. 456, 107 L.Ed.2d 438 (1989), that “the reach of Rule 11 should not extend beyond its plain language,” even where a broader interpretation might better serve" } ]

[ { "docid": "13602419", "title": "", "text": "this proceeding. I R. tab 5. Courtesy then filed several applications for permission to employ counsel. The court held a hearing (the transcript of which is not in the appellate record) but ultimately entered two separate orders denying the applications to employ two different attorneys, without stating reasons. See id. tabs 44-45. Despite the court’s warning that the petition would be dismissed unless an attorney made an appearance, proceedings continued — with a number of filings by Jones as president of Courtesy — until the petition was dismissed five months after it was filed. See id. tab 53. Proceedings continued thereafter on the dispute over sanctions and attorney’s fees, in which Jones continued to file papers as an officer of Courtesy. Thus, as a practical matter, Jones acted as the representative of the corporate debtor unless we construe his actions to be those of the corporation. It seems incongruous to hold that the president and sole shareholder who makes all filings on behalf of a lawyer-less, totally insolvent corporation cannot be sanctioned under Rule 9011, when an attorney who signed the same papers and the corporation itself could be sanctioned. But we must deal with the precise language of the rule; in a strict sense Jones is not an attorney representing a party nor is he the party. Pavelic & LeFlore, interpreting Fed.R.Civ.P. 11 when it read almost word-for-word the same as Rule 9011, refused to hold a law firm sanctionable when the papers were signed by a partner in the name of the law firm. The Court said “our task is to apply the text, not to improve upon it.” Pavelic & LeFlore, 493 U.S. at 126, 110 S.Ct. at 460. In Business Guides — holding the corporation was sanetionable under Rule 11 when the signature was by a president and sole shareholder — the Supreme Court again applied a strict reading, stating: “The plain language of the Rule again provides the answer.” 498 U.S. at 548, 111 S.Ct. at 931. A strict reading of Rule 9011 would deny the bankruptcy court jurisdiction under that rule to sanction Jones." }, { "docid": "5494783", "title": "", "text": "on the debtor’s motion to dismiss, I denied the motion and directed the entry of an order to show cause why sanctions should not be imposed on the debtor under Rule 9011(a) F.R.Bankr.P. DISCUSSION 1. SIMULTANEOUS FILINGS Rule 9011(a) F.R.Bankr.P. provides in relevant part: [t]he signature of ... a party constitutes a certificate that the ... party has read the document; that to the best of the ... party’s knowledge, information, and belief formed after reasonable inquiry it is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass, or to cause unnecessary delay, or needless increase in the cost of litigation or administration of the case.... If a document is signed in violation of this rule, the court ... on its own initiative, shall impose on the person who signed it ... an appropriate sanction, which may include an order to pay to the other party ... the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorney’s fee. (emphasis added). Although the debtor argues that he was inexperienced regarding the Rules of Federal Bankruptcy Procedure, he is, nonetheless, bound by their mandate. It is well settled that Rule 11 F.R.Civ.P., and therefore Rule 9011(a), applies to pro se litigants, Business Guides v. Chromatic Communications Enterprises, Inc., — U.S. -, 111 S.Ct. 922, 930, 112 L.Ed.2d 1140 (1991), and that the certification standard is an objective test for all signing parties. Thus, [w]hile this standard takes into account the special circumstances that often arise in pro se situations, pro se filings do not serve as an ‘impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets.’ Patterson v. Aiken, 841 F.2d 386, 387 (11th Cir.1988) (quoting Farguson v. MBank Houston N.A., 808 F.2d 358, 359 (5th Cir.1986)). Putnam Trust contends that the filing of the instant chapter 13 petition," }, { "docid": "12988686", "title": "", "text": "to the bankruptcy court for a determination of the amount of sanctions attributable to this improper pleading. Id. at 554. As Bamford notes, the latter holding is questionable given the Rainbow panel’s rejection of Memorial Estates and Midwest Properties for ignoring the plain language of Rule 9011. Furthermore, Bamford contends that both these eases were decided before the Supreme Court’s decision in Business Guides, Inc. v. Chromatic Communications Enterprises, Inc. In that case, the Supreme Court upheld the imposition of sanctions against a corporation and its attorneys for filing a motion for a temporary restraining order that was without factual basis. 498 U.S. at 554, 111 S.Ct. at 934-35. Notably, the motion was signed by an attorney and by the corporation’s president on behalf of the corporation. Id. at 536, 111 S.Ct. at 925. Reacting to the dissent’s criticism that the signature of the president should not have been treated as the corporation’s signature, the Court explained: Justice Kennedy suggests that this is “in square conflict” with our holding in Pavelic & LeFlore that “ ‘the person who signed’ ” was the individual attorney, not the law firm. The dissent overlooks an important distinction. In Pavelic & LeFlore, we relied in part on Rule ll’s unambiguous statement that papers must be signed by an attorney “in the attorney’s individual name.” A corporate entity, of course, cannot itself sign anything; it can act only through its agents. It would be anomalous to determine that an individual who is represented by counsel falls within the scope of Rule 11, but that a corporate client does not because it cannot itself sign a document. In any event, the question need not be resolved definitely [sic] here; Business Guides concedes that it did not raise this argument in the courts below. Id. at 547-48, 111 S.Ct. at 931 (citations omitted). Business Guides and other case law persuades me that the sanctions in this case, if appropriate at all, must fall on the Debtor and not on Bamford. See Leventhal v. New Valley Corp., 148 F.R.D. 109, 111-12 (S.D.N.Y.1993) (corporate vice president/general counsel not hable" }, { "docid": "12988685", "title": "", "text": "the purposes of the rule. Id. at 553. Thus, because the officer was neither a party nor the individual who signed the petition in violation of Rule 11, sanctions against him based on the petition were improper. Id. The panel further declined to justify the sanctions based on the bankruptcy court’s inherent sanctioning power. Id. The Rainbow court acknowledged that other courts had authorized the imposition of sanctions against the principal of a corporate party where that officer had personally participated in the sanctionable conduct, id. (citing In re Memorial Estates, Inc., 116 B.R. 108 (N.D.Ill.1990); Midwest Properties No. Two v. Big Hill Inv. Co., 93 B.R. 357 (N.D.Tex.1988)), but rejected these cases as failing to “address the conflict between the result and the plain language of the rule,” id. Curiously, the panel went on to hold that the corporate officer could be held personally liable under Rule 9011 for sanctions in connection with documents he did sign in his capacity as chief executive officer, such as a statement of affairs, and remanded the case to the bankruptcy court for a determination of the amount of sanctions attributable to this improper pleading. Id. at 554. As Bamford notes, the latter holding is questionable given the Rainbow panel’s rejection of Memorial Estates and Midwest Properties for ignoring the plain language of Rule 9011. Furthermore, Bamford contends that both these eases were decided before the Supreme Court’s decision in Business Guides, Inc. v. Chromatic Communications Enterprises, Inc. In that case, the Supreme Court upheld the imposition of sanctions against a corporation and its attorneys for filing a motion for a temporary restraining order that was without factual basis. 498 U.S. at 554, 111 S.Ct. at 934-35. Notably, the motion was signed by an attorney and by the corporation’s president on behalf of the corporation. Id. at 536, 111 S.Ct. at 925. Reacting to the dissent’s criticism that the signature of the president should not have been treated as the corporation’s signature, the Court explained: Justice Kennedy suggests that this is “in square conflict” with our holding in Pavelic & LeFlore that “" }, { "docid": "18508941", "title": "", "text": "would not support the bankruptcy court’s award of sanctions, it would arguably support the imposition of sanctions in some amount against Caldwell. We therefore remand this matter to the bankruptcy court for a determination of the appropriate sanction against Caldwell under Rule 9011, if any, for his signature on the fraudulent statement of affairs. B. Whether the bankruptcy court abused its discretion in imposing sanctions for filing a bankruptcy petition against a party who was represented by counsel. The debtor’s next contention is that the burden of the sanctions should be borne solely by the debtor’s attorney because the issue of a bad faith filing of a bankruptcy petition is a complex multi-factored legal issue and that in the case of such issues, parties should be shielded from sanctions by their reliance upon the advice of their competent counsel. The language of Rule 9011 expressly authorizes the imposition of sanctions against “the person who signed [the offending document], the represented party, or both.” See Business Guides Inc. v. Chromatic Communications Enterprises, Inc., — U.S.-, 111 S.Ct. 922, 112 L.Ed.2d 1140 (1991) (imposing an objective standard of reasonable inquiry under Rule 11 upon represented parties who sign the offending document). The Ninth Circuit has held in another context that a party may be held responsible for sanctions under Rule 11 for the good faith mistake of law or the carelessness of counsel. Lloyd v. Schlag, 884 F.2d 409, 412 (9th Cir.1989). In the context of sanctions for bad faith filing of bankruptcy petitions, however, courts apply the general rule that sanctions are to be allocated between counsel and client according to their relative culpability. See, e.g., In re Whitney Place Partners, 123 B.R. 117, 123-124 (Bankr.N.D.Ga.1991); In re Jones, 117 B.R. 415, 421 (Bankr.N.D.Ind.1990). Where the client is unsophisticated and the sanctions arise from a misreading of or failure to research the applicable law, sanctions have been imposed solely on counsel. See Weiszhaar Farms, Inc. v. Livestock State Bank, 113 B.R. 1017, 1022-24 (D.S.D.1990). Where, however, the client is knowledgeable about bankruptcy law or where the attorney and client share responsibility" }, { "docid": "10214664", "title": "", "text": "all papers and state the party’s address and telephone number. The signature of an attorney or a party constitutes a certificate that the attorney or party has read the document; that to the best of the attorney’s or party’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass, to cause delay, or to increase the cost of litigation. If a document is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the person whose signature is required. If a document is signed in violation of this rule, the court on motion or on its own initiative, shall impose on the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorney’s fee. (emphasis added). Bankruptcy Rule 9011(a) (emphasis added). See also Donaldson v. Clark, 819 F.2d 1551, 1555-62 (11th Cir.1987). Case law establishes that imposition of sanctions is appropriate when a bankruptcy petition is not filed for legitimate, rehabilitative purposes and the sole purpose for the filing is to delay foreclosure. Cinema Service Corp. v. Edbee Corp., 774 F.2d 584, 585-86 (3rd Cir.1985); In re Morgan, 85 B.R. 622, 623 (Bankr.M.D.Fla.1987); In re French Gardens, Ltd., 58 B.R. 959, 964 (Bankr.S.D.Texas 1986). Since debtor had a pending Chapter 13 case with a confirmed plan which could have been converted to Chapter 7 as a matter of right, it seems clear that debtor’s Chapter 7 case was not filed for “fresh start” purposes. Based on the foregoing discussion, the court concludes that debtor’s filing of this Chapter 7 petition was violative of Bank ruptcy Rule 9011 and the court will impose sanctions against debtor as a result thereof. The" }, { "docid": "10177395", "title": "", "text": "extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harrass, to cause delay, or to increase the cost of litigation.... If a document is signed in violation of this rule, the court on motion or on its own initiative, shall impose on the person who signed it, the represented party, or both, an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the document, including a reasonable attorney’s fee. Bankruptcy Rule 9011. See also Fed.R. Civ.P. 11. Section 1927 of title 28 states in relevant part: Any attorney ... who so multiplies the proceedings in a case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses and attorney’s fees reasonably incurred because of such conduct. 28 U.S.C. § 1927. The Creditor claims on appeal that the Court erred in not awarding sanctions because the Debtor’s only purpose in filing three Chapter 13 petitions and a Chapter 7 petition was to prevent a foreclosure on his property. According to the Creditor, this constitutes bad faith and an abuse of the Code thus requiring the imposition of sanctions. See In re Jones, supra, 41 B.R. at 268; In re Bystrek, 17 B.R. 894, 895-96 (Bkrtcy.E.Pa.1982). A court’s decision to impose or not to impose sanctions will not be reversed absent an abuse of discretion. See Roadway Express, Inc. v. Piper, supra, 447 U.S. at 764, 100 S.Ct. at 2463; Cinema Service Corp. v. Edbee Corp., supra, 774 F.2d at 586. Filing a bankruptcy petition to prevent foreclosure if undertaken pursuant to a legitimate effort at reorganization is not reprehensible and is in accord with the aim of the Bankruptcy Code. Cinema Service Corp. v. Edbee Corp., supra, 774 F.2d at 586. Debtors may file successive Chapter 13 plans as long as each new plan is proposed in good faith. In re Nash, 765 F.2d 1410, 1415 (9th Cir.1985). In the present case, we find no abuse of discretion in the Bankruptcy Court’s decision" }, { "docid": "1204418", "title": "", "text": "Bankruptcy Code, the Rules of Bankruptcy Procedure, and the Local Rules of Bankruptcy Procedure, just as any other party represented by counsel. Pro se litigants tend, however, to receive greater latitude in enforcement than parties represented by attorneys. A review of the record in this case, including transcripts, pleadings, orders, and the docket, demonstrates that Schaefer has undoubtedly received more latitude than he is entitled to. He consistently ignores the Bankruptcy Code, the Rules of Bankruptcy Procedure, the Bankruptcy Local Rules, the Orders of this Court, and even an Order of the U.S. District Court. Rule 9011, Rules of Bankruptcy Procedure (“Rule 9011”), which addresses the significance of signing pleadings, provides as follows: (a) ... A party who is not represented by an attorney shall sign all papers ... The signature of ... a party constitutes a certificate that the ... party has read the document; that to the best of the ... party’s knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation or administration of the case. * * * If a document is signed in violation of this rule, the Court on motion or on its own initiative, shall impose on the person who signed it ... an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorneys fee. —Rule 9011(a), Rules of Bankruptcy Procedure (“Rule 9011(a)”). Rule 9011(a) clearly applies to pro se litigants and debtors and subjects them to the same standards as an attorney. Business Guides v. Chromatic Communications Ent., 498 U.S. 533, 111 S.Ct. 922, 112 L.Ed.2d 1140 (1991); (interpreting Rule 11, Federal Rules of Civil Procedure, which is substantially similar to Rule 9011); In re Cauthen, 152 B.R. 149," }, { "docid": "13602416", "title": "", "text": "553 (Bankr. 9th Cir.1992), Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 536, 554, 111 S.Ct. 922, 925, 934-35, 112 L.Ed.2d 1140 (1991), and cases dealing with general corporate liability under Rule 11, the district court concluded that if sanctions were appropriate, they could be levied only against the debtor and not its president. In re Chisholm, 166 B.R. at 713-14. Because the debtor’s president had not signed the bankruptcy petition in his individual capacity, by implication, he was not a person who signed a document in violation of Rule 9011. Id. at 715. The Chisholm judge noted a conflict of authority regarding whether a corporate officer can be held liable under Rule 9011 for signing a pleading in his official capacity. Id. at 713-14. The leading case holding no liability for an officer signing in an official capacity is In re Rainbow Magazine. There, the Ninth Circuit’s Bankruptcy Appellate Panel reversed in part sanctions levied against a debtor’s chief executive officer. Relying on Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 110 S.Ct. 456, 107 L.Ed.2d 438 (1989), the court concluded that “the reach of Rule 11 should not extend beyond its plain language,” and that Rule 9011 “does not contemplate sanctions against a person who is neither the person who signed the offending pleading nor a party.” Id. 136 B.R. at 552-53. In re Rainbow Magazine rests on the legal distinction between signing a document as a corporate officer on behalf of a corporation, and signing individually. The Supreme Court’s Business Guides decision affirmed sanctions against a corporation when the offending motion was signed by the corporation’s president on behalf of the corporation. 498 U.S. at 554, 111 S.Ct. at 934-35. The Court held that the signature of the president should have been treated as the signature of the corporation. “A corporate entity, of course, cannot itself sign anything; it can act only through its agents. It would be anomalous to determine that an individual who is represented by counsel falls within the scope of Rule 11, but that a corporate client does" }, { "docid": "10177394", "title": "", "text": "judicial process. Roadway Express, Inc. v. Piper, 447 U.S. 752, 766, 100 S.Ct. 2455, 2464, 65 L.Ed.2d 488 (1980); In re Jones, 41 B.R. 263, 267 (Bkrtcy.C.Cal.1984). The power to correct abusive practices is found in Section 105(a) of the Code which states: The bankruptcy court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. 11 U.S.C. § 105(a). In addition, a bankruptcy court may render sanctions against a party or an attorney under the authority of Bankruptcy Rule 9011 or 28 U.S.C. § 1927. Cinema Service Corp. v. Edbee Corp., 774 F.2d 584, 585-86 (3d Cir.1985); In re Jones, supra, 41 B.R. at 267. Bankruptcy Rule 9011 states in relevant part: The signature of an attorney or a party constitutes a certificate by him that he has read the document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harrass, to cause delay, or to increase the cost of litigation.... If a document is signed in violation of this rule, the court on motion or on its own initiative, shall impose on the person who signed it, the represented party, or both, an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the document, including a reasonable attorney’s fee. Bankruptcy Rule 9011. See also Fed.R. Civ.P. 11. Section 1927 of title 28 states in relevant part: Any attorney ... who so multiplies the proceedings in a case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses and attorney’s fees reasonably incurred because of such conduct. 28 U.S.C. § 1927. The Creditor claims on appeal that the Court erred in not awarding sanctions because the Debtor’s only purpose in filing three Chapter 13 petitions and a Chapter" }, { "docid": "13602418", "title": "", "text": "not because it cannot itself sign a document.” Id. at 548, 111 S.Ct. at 931. The Chisholm judge relied upon that reasoning to hold that the imposition of sanctions against the debtor’s president was incorrect as a matter of law when the pleadings were not signed as an individual, but solely in his capacity as an officer of the corporation. The case before us is unlike In re Rainbow Magazine, Chisholm, and the other cited eases, because the corporation here, Courtesy, was never represented by counsel. One day after Jones filed the voluntary petition in his capacity as president of Courtesy, the court entered an order stating that under the Rules of Practice, corporate entities cannot appear in these proceedings pro se by and through officers or employees of the corporation. The petition must be signed and submitted by an attorney licensed to practice in this Court. The petition, as filed will be DISMISSED within ten (10) days without further notice or hearing, if Debtor does not have counsel entered as attorney of record in this proceeding. I R. tab 5. Courtesy then filed several applications for permission to employ counsel. The court held a hearing (the transcript of which is not in the appellate record) but ultimately entered two separate orders denying the applications to employ two different attorneys, without stating reasons. See id. tabs 44-45. Despite the court’s warning that the petition would be dismissed unless an attorney made an appearance, proceedings continued — with a number of filings by Jones as president of Courtesy — until the petition was dismissed five months after it was filed. See id. tab 53. Proceedings continued thereafter on the dispute over sanctions and attorney’s fees, in which Jones continued to file papers as an officer of Courtesy. Thus, as a practical matter, Jones acted as the representative of the corporate debtor unless we construe his actions to be those of the corporation. It seems incongruous to hold that the president and sole shareholder who makes all filings on behalf of a lawyer-less, totally insolvent corporation cannot be sanctioned under Rule 9011," }, { "docid": "9998638", "title": "", "text": "383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). V Several defendants have moved for sanctions under Fed.R.Civ.P. 11 and for attorneys’ fees under § 11(e) of the ’33 Act, codified at 15 U.S.C. § 77k(e). Defendants’ motions are well taken. Former Rule 11 of the Federal Rules of Civil Procedure required that “[e]very pleading, motion, and other paper of a party represented by an attorney ... be signed by at least one attorney of record.” This signature constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation____ If a pleading ... is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing, of the pleading ..., including a reasonable attorney’s fee. Id. Rule 11 sanctions are imposed on the basis of objective conduct, not on the basis of a party’s subjective bad faith. Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 548, 550, 111 S.Ct. 922, 932, 933, 112 L.Ed.2d 1140 (1991). This objective standard applies to legal theories, as well as facts. See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 653 (9th Cir.1988) (affirming grant of Rule 11 sanctions on ground that no competent lawyer would believe that the cases the attorney relied on actually supported his position). The “reasonable inquiry” requirement applies separately to each distinct claim in a complaint or other pleading. See Townsend v. Holman Consulting" }, { "docid": "13602417", "title": "", "text": "U.S. 120, 110 S.Ct. 456, 107 L.Ed.2d 438 (1989), the court concluded that “the reach of Rule 11 should not extend beyond its plain language,” and that Rule 9011 “does not contemplate sanctions against a person who is neither the person who signed the offending pleading nor a party.” Id. 136 B.R. at 552-53. In re Rainbow Magazine rests on the legal distinction between signing a document as a corporate officer on behalf of a corporation, and signing individually. The Supreme Court’s Business Guides decision affirmed sanctions against a corporation when the offending motion was signed by the corporation’s president on behalf of the corporation. 498 U.S. at 554, 111 S.Ct. at 934-35. The Court held that the signature of the president should have been treated as the signature of the corporation. “A corporate entity, of course, cannot itself sign anything; it can act only through its agents. It would be anomalous to determine that an individual who is represented by counsel falls within the scope of Rule 11, but that a corporate client does not because it cannot itself sign a document.” Id. at 548, 111 S.Ct. at 931. The Chisholm judge relied upon that reasoning to hold that the imposition of sanctions against the debtor’s president was incorrect as a matter of law when the pleadings were not signed as an individual, but solely in his capacity as an officer of the corporation. The case before us is unlike In re Rainbow Magazine, Chisholm, and the other cited eases, because the corporation here, Courtesy, was never represented by counsel. One day after Jones filed the voluntary petition in his capacity as president of Courtesy, the court entered an order stating that under the Rules of Practice, corporate entities cannot appear in these proceedings pro se by and through officers or employees of the corporation. The petition must be signed and submitted by an attorney licensed to practice in this Court. The petition, as filed will be DISMISSED within ten (10) days without further notice or hearing, if Debtor does not have counsel entered as attorney of record in" }, { "docid": "6717681", "title": "", "text": "10, 1997, the trustee filed an objection to the motion contending that the debtor was ineligible for chapter 13 under § 109(e), but more to the point, the debtor was prohibited by § 706(a) from converting to chapter 13. The debtor failed to appear at the January 21 hearing scheduled by a January 10 order to show cause, and the court, sua sponte, entered a second order to show cause why the debtor should not be sanctioned under Rule 9011(a) F.R.Bankr.P., for filing the conversion motion and scheduled a hearing for February 3. DISCUSSION Rule 9011(a) F.R.Bankr.P. provides in pertinent part: ... A party who is not represented by an attorney shall sign all papers and state the party’s address and telephone number. The signature of ... a party constitutes a certificate that the ... party has read the document; that to the best of the ... party’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass, or to cause unnecessary delay or needless increase in the cost of litigation or administration of the case____ If a document is signed in violation of this rule, the court on motion or on its own initiative, shall impose on the person who signed it ... an appropriate sanction, which may include an order to pay to the other party ... the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorney’s fee. 11 U.S.C. Rule 9011(a) (West 1997). It is well settled that Rule 9011(a) and Rule 11 F.R.Civ.P., on which it is based, see Baker v. Latham Sparrowbush Associates (Matter of Cohoes Industrial Terminal, Inc.), 931 F.2d 222, 227 (2nd Cir.1991), imposes an objective standard of what is a reasonable inquiry. See Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 549, 111 S.Ct. 922, 932, 112 L.Ed.2d 1140 (1991) (upholding sanction of" }, { "docid": "12988688", "title": "", "text": "personally for sanctions under Rule 11; corporate office is sufficient to visit liability on the corporation but not on the officer individually); Paine-Webber, Inc. v. Can Am Fin. Group Ltd., 121 F.R.D. 324, 335-36 (N.D.Ill.1988) (corporation, not its president, held liable under Rule 11 for president’s lies to attorneys leading to filing of improper pleading), aff'd, 885 F.2d 873 (7th Cir.1989). But see Project 74 Allentown, Inc. v. Frost, 143 F.R.D. 77, 83 n. 7 (E.D.Pa.1992) (Rule 11 permits a court “to sanction the individual who signed a paper on behalf of a corporation as well as the corporation itself’), aff'd, 998 F.2d 1004 (3d Cir.1993). I conclude that the bankruptcy court erred as a matter of law in sanctioning Bam-ford under Rule 9011 because he did not sign the pleadings in his individual capacity. 2. Can Bamford Be Sanctioned as the Debtor’s Alter Ego? A second basis upon which the bankruptcy court apparently entered sanctions against Bamford individually was its finding that Bamford was the Debtor’s alter ego. This conclusion is erroneous both as a matter of law and of fact. In Rainbow Magazine, the appellate panel reversed the bankruptcy court’s imposition of sanctions against the corporation’s principal based on his signing the corporation’s bad faith bankruptcy petition. The panel went on to identify a second basis, the doctrine of alter ego, under which a principal of a corporation might be liable for the sanctions: [I]n determining that neither Rule 9011 nor the bankruptcy court’s inherent power provide a basis for upholding the bankruptcy court’s imposition of sanctions against Caldwell, we do not hold that Caldwell is immune from any sanction award. We express no opinion as to whether [the creditor] could, in an appropriate action, enforce the debtor’s corporate liability for sanctions against Caldwell under any applicable state law that would allow a creditor to pursue a corporate officer or principal to recover debts of the corporation. 136 B.R. at 554. Assuming that a corporate principal may be held liable under alter ego theory for Rule 11 sanctions, a necessary predicate to holding Bamford liable in this case" }, { "docid": "12869479", "title": "", "text": "is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of Ktigation or administration of the ease.... If a document is signed in violation of this rule, the court on motion or on its own initiative, shall impose on the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the fifing of the document, including a reasonable attorney’s fee. The debtor signed the petition, schedules, Statement of Financial Affairs and plan. The Court has already ruled that the debtor filed his petition in bad faith. Prompted only by the urge to frustrate the Condominium, he lacks any legitimate intent or objective ability to reorganize, and has misrepresented his assets and liabilities. This conclusion supports the award of sanctions under Rule 9011. The debtor’s attorney did not sign any of these documents, and did not even sign his own statement pursuant to Fed. R.Bankr.P. 2016. The Court cannot, therefore, award sanctions under Rule 9011. On its own motion, however, it will award sanctions under 11 U.S.C. § 105(a) and 28 U.S.C. § 1927. The latter provides: Any attorney or other person admitted to conduct cases in any court of the United States or any territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct. “A bankruptcy court may impose sanctions pursuant to 28 U.S.C. § 1927 if it finds that ‘[an] attorney’s actions are so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose such as delay.’ ” In re Cohoes Indus. Terminal, Inc., 931 F.2d at 230 (quoting Oliven v. Thompson, 803 F.2d 1265, 1273 (2d Cir.1986))," }, { "docid": "13602414", "title": "", "text": "whose office address and telephone number shall be stated. A party who is not represented by an attorney shall sign all papers and state the party’s address and telephone number. The signature of an attorney or a party constitutes a certificate that the attorney or party has read the document; that to the best of the attorney’s or party’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation or administration of the case. If a document is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the person whose signature is required. If a document is signed in violation of this rule, the court on motion or on its own initiative, shall impose on the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorney’s fee. The petition and all papers filed in this case listed Courtesy as the debtor and were signed by Jones as debtor’s president. No attorney represented Courtesy, and Jones apparently is not an attorney. Jones was not himself a party to the bankruptcy proceeding. In Gelt v. Janowitz (In re The Chisholm Co.), 166 B.R. 706 (D.Colo.1994), the bankruptcy court had sanctioned debtor’s attorney and debtor’s president, as debtor’s alter ego, relying on Rule 9011 and 28 U.S.C. § 1927. Id. at 712. The debtor was not sanctioned. Id. at 715. The district court reversed the imposition of sanctions against the debtor’s president, who had signed the petition in his corporate capacity. Id. at 711, 715. Relying on Caldwell v. Farris (In re Rainbow Magazine, Inc.), 136 B.R. 545," }, { "docid": "18508940", "title": "", "text": "to whether Unified could, in an appropriate action, enforce the debtor’s corporate liability for sanctions against Caldwell under any applicable state law that would allow a creditor to pursue a corporate officer or principal to recover debts of the corporation. In addition, Caldwell did sign a document that would arguably support the imposition of some sanctions against him under Rule 9011. He signed, as Chief Executive Officer of the debtor, a statement of financial affairs that the bankruptcy court determined to be false and fraudulent. While such a fraudulent statement of affairs would arguably violate Rule 9011 in that it is not well grounded in fact, the bankruptcy court’s sanction award was based on the bad faith filing of the petition, not this false document. In this regard, the measure of damages awarded to Unified corresponds to the attorney’s fees incurred as a result of the bad faith filing of the petition, not the attorney’s fees incurred as a result of the fraudulent statement of affairs. Thus, while the false financial statement signed by Caldwell would not support the bankruptcy court’s award of sanctions, it would arguably support the imposition of sanctions in some amount against Caldwell. We therefore remand this matter to the bankruptcy court for a determination of the appropriate sanction against Caldwell under Rule 9011, if any, for his signature on the fraudulent statement of affairs. B. Whether the bankruptcy court abused its discretion in imposing sanctions for filing a bankruptcy petition against a party who was represented by counsel. The debtor’s next contention is that the burden of the sanctions should be borne solely by the debtor’s attorney because the issue of a bad faith filing of a bankruptcy petition is a complex multi-factored legal issue and that in the case of such issues, parties should be shielded from sanctions by their reliance upon the advice of their competent counsel. The language of Rule 9011 expressly authorizes the imposition of sanctions against “the person who signed [the offending document], the represented party, or both.” See Business Guides Inc. v. Chromatic Communications Enterprises, Inc., — U.S.-, 111" }, { "docid": "13602415", "title": "", "text": "impose on the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorney’s fee. The petition and all papers filed in this case listed Courtesy as the debtor and were signed by Jones as debtor’s president. No attorney represented Courtesy, and Jones apparently is not an attorney. Jones was not himself a party to the bankruptcy proceeding. In Gelt v. Janowitz (In re The Chisholm Co.), 166 B.R. 706 (D.Colo.1994), the bankruptcy court had sanctioned debtor’s attorney and debtor’s president, as debtor’s alter ego, relying on Rule 9011 and 28 U.S.C. § 1927. Id. at 712. The debtor was not sanctioned. Id. at 715. The district court reversed the imposition of sanctions against the debtor’s president, who had signed the petition in his corporate capacity. Id. at 711, 715. Relying on Caldwell v. Farris (In re Rainbow Magazine, Inc.), 136 B.R. 545, 553 (Bankr. 9th Cir.1992), Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 536, 554, 111 S.Ct. 922, 925, 934-35, 112 L.Ed.2d 1140 (1991), and cases dealing with general corporate liability under Rule 11, the district court concluded that if sanctions were appropriate, they could be levied only against the debtor and not its president. In re Chisholm, 166 B.R. at 713-14. Because the debtor’s president had not signed the bankruptcy petition in his individual capacity, by implication, he was not a person who signed a document in violation of Rule 9011. Id. at 715. The Chisholm judge noted a conflict of authority regarding whether a corporate officer can be held liable under Rule 9011 for signing a pleading in his official capacity. Id. at 713-14. The leading case holding no liability for an officer signing in an official capacity is In re Rainbow Magazine. There, the Ninth Circuit’s Bankruptcy Appellate Panel reversed in part sanctions levied against a debtor’s chief executive officer. Relying on Pavelic & LeFlore v. Marvel Entertainment Group, 493" }, { "docid": "6717682", "title": "", "text": "extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass, or to cause unnecessary delay or needless increase in the cost of litigation or administration of the case____ If a document is signed in violation of this rule, the court on motion or on its own initiative, shall impose on the person who signed it ... an appropriate sanction, which may include an order to pay to the other party ... the amount of the reasonable expenses incurred because of the filing of the document, including a reasonable attorney’s fee. 11 U.S.C. Rule 9011(a) (West 1997). It is well settled that Rule 9011(a) and Rule 11 F.R.Civ.P., on which it is based, see Baker v. Latham Sparrowbush Associates (Matter of Cohoes Industrial Terminal, Inc.), 931 F.2d 222, 227 (2nd Cir.1991), imposes an objective standard of what is a reasonable inquiry. See Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 549, 111 S.Ct. 922, 932, 112 L.Ed.2d 1140 (1991) (upholding sanction of attorney’s fees and costs imposed against a signing represented party); O’Brien v. Alexander, 101 F.3d 1479, 1490 (2d Cir.1996). It is further noted that Rule 9011 sanctions apply to parties proceeding pro se. Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., supra at 549, 111 S.Ct. at 932. The debtor offered a series of unpersuasive arguments, including her claim that she was only responsible for half of the secured debt, so she was within the eligibility levels of § 109(e). She also claimed that she filed the motion to convert “at the suggestion of the Debtor’s husband’s attorney ... [who] sent [her] ... [a case summary appearing in Connecticut Opinions of] Italiano v. Rosenbaum, US District Court Docket No. 3:94CV 1090 ... as precedent that the Debtor has an ‘automatic right’ [to convert her case]” and that “therefore the Debtor has no reason to believe that she [does not have that] right.” See February 3, 1997 Objection to Objection of Richard M. Coan Trustee to Motion to Convert Chapter 7 Case to Chapter 13, at" } ]

[ { "docid": "14989220", "title": "", "text": "the named plaintiffs an immediate preliminary hearing to determine probable cause for further detention.” Id. at 107-08, 95 S.Ct. 854. The Court then noted: The District Court correctly held that respondents’ claim for relief was not barred by the equitable restrictions on federal intervention in state prosecutions, Younger v. Harris, 401 U.S. 37 [91 S.Ct. 746, 27 L.Ed.2d 669] (1971). The injunction was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution. The order to hold preliminary hearings could not prejudice the conduct of the trial on the merits. Id. at 108 n.9, 95 S.Ct. 854. Other courts have since relied on the distinction articulated in Gerstein at Note 9 as to whether abstention pursuant to Younger is appropriate. Shortly after Gerstein was decided, the Third Circuit found a district court’s abstention pursuant to Younger to be appropriate, and directly addressed the applicability of Note 9 in Gerstein, where the state-court defendant sought a federal injunction prohibiting “sessions on Friday, the Islamic Sabbath of appellant, in a pending criminal trial in state court when available state procedures to remedy the alleged constitutional infringement have not been exhausted.” State of N.J. v. Chesimard, 555 F.2d 63, 64 (3d Cir. 1977). In that case, the state-court defendant’s “free exercise right could not be asserted as a defense to the criminal prosecution[,]” but it was “equally true that the right could not be raised in the absence of a criminal prosecution” and was in fact ... asserted as part of an ongoing criminal prosecution. Ms. Chesimard raised her free exercise claim by pretrial motion in the state court. Although the state system provides for interlocutory review of the adverse ruling she received, Ms. Chesimard has chosen not to pursue her available state remedies to their fullest extent. Under these circumstances, we believe the federal hand must be stayed[, pursuant to Younger and ... ] Huffman v. Pursue, Ltd., 420 U.S. [592,] 609 [95 S.Ct. 1200, 43 L.Ed.2d 482 (1975)" } ]

[ { "docid": "13715938", "title": "", "text": "search warrant, see Burns v. Reed, 500 U.S. 478, 492, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991); directing court officers to bring a particular attorney before the judge for a judicial proceeding, see Mireles, 502 U.S. at 12-13, 112 S.Ct. 286; granting a petition for sterilization, see Stump, 435 U.S. at 362-64, 98 S.Ct. 1099; and disbarring an attorney as a sanction for the attorney’s contumacious conduct in connection with a particular case, see Bradley, 80 U.S. (13 Wall.) at 354-57. The fact that a proceeding is “informal and ex parte ... has not been thought to imply that an act otherwise within a judge’s lawful jurisdiction was deprived of its judicial character.” Forrester, 484 U.S. at 227,108 S.Ct. 538; see, e.g., Stump, 435 U.S. at 363 n.12, 98 S.Ct. 1099 (the fact “[t]hat there were not two contending litigants did not make Judge Stump’s act [in granting mother’s petition for sterilization of her “ ‘somewhat retarded’ ” daughter] any less judicial”). In Huminski v. Corsones, we concluded that a judge’s orders prohibiting Huminski from appearing in or around state-court facilities were judicial acts because Huminski’s conduct and communications, perceived as potentially threatening, were complaining of rulings in a criminal case in which he had been the defendant and over which the judge had presided. See 396 F.3d at 78. In contrast, a judge’s “[administrative decisions, even though they may be essential to the very functioning of the courts, have not similarly been regarded as judicial acts.” Forrester, 484 U.S. at 228, 108 S.Ct. 538. Such administrative actions include demoting or dismissing a court employee, see id. at 229-30, 108 S.Ct. 538; and compiling general jury lists to affect all future trials, see Ex parte Virginia, 100 U.S. 339, 348, 25 L.Ed. 676 (1879). Similarly, judges are not entitled to judicial immunity for promulgating a code of conduct for attorneys, though for that function they have been held entitled to legislative immunity. See Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 731, 734, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980); see, e.g., id. at" }, { "docid": "12066620", "title": "", "text": "The court therefore entered its order awarding the requested costs and fees on November 20, fifteen days later. Moreover, Collins contends that litigants who file electronically have an unfair advantage over those who receive court orders by regular mail, but this difference does not satisfy the extraordinary requirements for Rule 60(b) relief, which is granted only in exceptional circumstances. See Harrington v. City of Chi, 433 F.3d 542, 546 (7th Cir.2006). Finally, Collins’s contention that Judge Mills was biased and that he failed to adequately accommodate her pro se status lacks merit. We understand this argument as a challenge to the court’s denial of her motion to recuse Judge Mills, which Collins filed immediately after our remand in 2005. In her motion Collins contended that Judge Mills had rushed to dismiss her case, had never disclosed his purported relationship to the defendants, and had displayed prejudice against her and other African Americans. In denying the motion. Judge Mills reasoned that Collins’s allegations were unsubstantiated personal attacks and failed to establish any evidence of bias. At the outset we reject Collins’s assertion that Judge Mills must have been biased because he initially dismissed her complaint and later required her to amend it four times. As we have repeatedly held, even pro se litigants must follow procedural rules, see Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir.2008), and judicial rulings rarely present a valid basis for a recusal motion, Grove Fresh Distribs., Inc. v. John Labatt, Ltd., 299 F.3d 635, 640 (7th Cir.2002). To the extent that her motion for recusal was based on 28 U.S.C. § 455(a), which requires recusal in any proceeding in which a judge’s impartiality might reasonably be questioned, Collins failed to pursue her only avenue for review, a pretrial petition for mandamus. See O’Regan v. Arbitration Forums, Inc., 246 F.3d 975, 987 (7th Cir.2001). Nor has Collins presented any evidence that would lead a reasonable observer to believe that the judge was incapable of ruling fairly, as required to establish actual bias under 28 U.S.C. § 455(b)(1). See id. at 988; Hook v. McDade," }, { "docid": "22240516", "title": "", "text": "547, 553-55, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967). A prosecutor is absolutely immune for activities which are “intimately associated with the judicial process” such as initiating and pursuing a criminal prosecution. Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 994-95, 47 L.Ed.2d 128 (1976). However, the same immunity traditionally does not extend to a prosecutor’s actions which may be classified as administrative or investigative. Id. at 430-31, 96 S.Ct. at 994—96; Harlow v. Fitzgerald, 457 U.S. 800, 811 n. 16, 102 S.Ct. 2727, 2734 n. 16, 73 L.Ed.2d 396 (1982). Witnesses, including public officials and private citizens, are immune from civil damages based upon their testimony. Briscoe v. La Hue, 460 U.S. 325, 341, 345-46, 103 S.Ct. 1108, 1120-21, 75 L.Ed.2d 96 (1983). In deciding questions of immunity, the Court has taken a functional approach after considering the history of common law immunity. Thus, in Butz v. Economou, 438 U.S. 478, 508, 515-17, 98 S.Ct. 2894, 2915-16, 57 L.Ed.2d 895 (1978), the Court determined that agency officials who initiate and prosecute enforcement proceedings subject to agency adjudication are entitled to absolute immunity. The rationale for according absolute immunity in the civil rights context is to incorporate traditional common law immunities and to allow functionaries in the judicial system the latitude to perform their tasks absent the threat of retaliatory § 1983 litigation. Because the judicial system often resolves disputes that the parties cannot, the system portends conflict. Win or lose, a party may seek to litigate the constitutionality of circumstances which required him to endure a lawsuit or suffer defeat. Such suits by dissatisfied parties might target judges, see Valdez v. City & County of Denver, 878 F.2d 1285 (10th Cir.1989), prosecutors and witnesses. Cf. Mitchell, 472 U.S. at 523, 105 S.Ct. at 2813-14. Though such suits might be satisfying personally for a plaintiff, they could jeopardize the judicial system’s ability to function. Absolute immunity has its costs because those with valid claims against dishonest or malicious government officials are denied relief. Imbler, 424 U.S. at 427, 96 S.Ct. at 993; Valdez, 878 F.2d at 1289." }, { "docid": "22240517", "title": "", "text": "enforcement proceedings subject to agency adjudication are entitled to absolute immunity. The rationale for according absolute immunity in the civil rights context is to incorporate traditional common law immunities and to allow functionaries in the judicial system the latitude to perform their tasks absent the threat of retaliatory § 1983 litigation. Because the judicial system often resolves disputes that the parties cannot, the system portends conflict. Win or lose, a party may seek to litigate the constitutionality of circumstances which required him to endure a lawsuit or suffer defeat. Such suits by dissatisfied parties might target judges, see Valdez v. City & County of Denver, 878 F.2d 1285 (10th Cir.1989), prosecutors and witnesses. Cf. Mitchell, 472 U.S. at 523, 105 S.Ct. at 2813-14. Though such suits might be satisfying personally for a plaintiff, they could jeopardize the judicial system’s ability to function. Absolute immunity has its costs because those with valid claims against dishonest or malicious government officials are denied relief. Imbler, 424 U.S. at 427, 96 S.Ct. at 993; Valdez, 878 F.2d at 1289. Still, the Court has determined that the smooth functioning of the judicial system takes precedence over those meritorious claims which will be foreclosed by granting absolute immunity. Such claims may find partial resolution through other means, however. The opportunity for subsequent judicial review of decisions made by prosecutors and for subsequent appellate review of lower court decisions provides a check upon actions clothed with absolute immunity. Mitchell, 472 U.S. at 522-23, 105 S.Ct. at 2813-14. And the grant of absolute immunity does not insulate an official from the criminal process or professional discipline. Imbler 424 U.S. at 429, 96 S.Ct. at 994. Thus, “[ajbsolute immunity is ... necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation.” Butz, 438 U.S. at 512, 98 S.Ct. at 2913. A judge must be free to make decisions, often controversial, without concern about possible personal repercussions. Stump, 435 U.S. at 363-64, 98 S.Ct. at 1108-09. In deciding which cases to pursue and hów they should be pursued, a prosecutor should not be" }, { "docid": "11138902", "title": "", "text": "have brought the alleged procedural flaws to the attention of the probate court and, if that court denied relief, could have raised the points on appeal. After all, one of the primary purposes of judicial immunity is to “establish appellate procedures as the standard system for correcting judicial error.” Forrester, 484 U.S. at 225, 108 S.Ct. 538. Here, too, the plaintiff has a fallback position. He strives to persuade us that the special master acted in the complete absence of jurisdiction because his failure to respond to the plaintiffs letters anent discovery orders constituted an abandonment of his office (and, hence, his jurisdiction to act). We are not convinced. The law is clear that even bad faith or malice will not divest the cloak of judicial immunity. See, e.g., Mireles, 502 U.S. at 11, 112 S.Ct. 286. A fortiori, negligence in performing judicial duties affects neither a defendant’s immunity nor his jurisdiction; the judicial officer (or the person performing tasks intimately associated with core judicial functions) retains the power, whether or not negligent, to act in that capacity. See Cok, 876 F.2d at 4 (holding that “negligent performance” or “dereliction of duty” does not divest an individual of authority granted by the court). The plaintiffs final argument is that the Firm, as contrasted with Nigro himself, was not entitled to quasi-judicial immunity. In this regard, he points out that the Firm was not mentioned in the probate court’s appointment order and had no standing in the will contest. This is whistling past the graveyard. The Firm had no independent involvement in the will contest. From what the complaint reveals, the Firm’s only contribution was through the special master’s use of its resources (such as staff assistance, stationery, and the like). This kind of support for the performance of judicial acts warrants quasi-judicial immunity. See Lewittes v. Lobis, 164 Fed.Appx. 97, 98 (2d Cir.2006); Quitoriano v. Raff & Becker, LLP, 675 F.Supp.2d 444, 449 (S.D.N.Y. 2009). In much the same way that a law clerk who helps in the formulation of an opinion is entitled to share in the judge’s immunity," }, { "docid": "22566321", "title": "", "text": "for damages arising from acts they are specifically required to do under court order or at a judge’s direction”); Waits v. McGowan, 516 F.2d 203, 206 (3d Cir.1975) (stating “where the defendant is directly involved in the judicial process, he may receive immunity in his own right for the performance of a discretionary act or he may be covered by the immunity afforded the judge because he is performing a ministerial function at the direction of the judge”). As we explained in Valdez: To force officials performing ministerial acts intimately related to the judicial process to answer in court every time a litigant believes a judge acted improperly is unacceptable. Officials must not be called upon to answer for the legality of decisions which they are powerless to control.... [I]t is simply unfair to spare the judges who give them orders while punishing the officers who obey them. Denying these officials absolute immunity for their acts would make them a lightening rod for harassing litigation aimed at judicial orders. 878 F.2d at 1289 (internal quotations omitted); see also Ashbrook v. Hoffman, 617 F.2d 474, 476 (7th Cir.1980). The reasoning of Valdez is fully applicable here. The evidence establishes that the pretrial service officers were acting pursuant to judicial directives and were expected to sign and deliver the TROs on the standard form approved by the First Judicial District. Therefore, even if their actions could be characterized as ministerial, they would still be absolutely immune from civil suit. See Valdez, 878 F.2d at 1289-90. Finally, we note that this is a paradigmatic case for judicial immunity in that it supports the most common justification for the doctrine: there are effective, alternative methods of protecting litigants against judicial errors that are less detrimental to the judicial process than exposing judges to liability for civil claims. In Forrester v. White, the Supreme Court observed that: [Sjuits against judges [are not] the only available means through which litigants can protect themselves from the consequences of judicial error. Most judicial mistakes or wrongs are open to correction through ordinary mechanisms of review, which are largely" }, { "docid": "12066619", "title": "", "text": "the court reporter and the police outside the building are baseless. The record also reveals a pattern of disregard for discovery rules including a failure to timely answer interrogatories and supply documents. Finally, in their request for sanctions, the defendants noted that deposing Collins was essential to proceed with the case because her complaint was vague and left them uncertain about her specific claims. Given that Collins had hindered the progress of her lawsuit during the twenty-eight months between our remand in March 2005 and her aborted deposition in August 2007, we perceive no abuse of discretion in the court’s choice of sanction. Nor did the district court abuse its discretion when it denied Collins’s Rule 60(b) motion. See Hicks v. Midwest Transit, Inc., 531 F.3d 467, 473-74 (7th Cir.2008). The union served Collins with an itemized statement of fees and costs by mailing it to her home address on November 5, see Fed.R.CivJP. 5(b)(2)(C), and the record shows that Collins failed to respond within fourteen days of service as required by Local Rule 7.1(B). The court therefore entered its order awarding the requested costs and fees on November 20, fifteen days later. Moreover, Collins contends that litigants who file electronically have an unfair advantage over those who receive court orders by regular mail, but this difference does not satisfy the extraordinary requirements for Rule 60(b) relief, which is granted only in exceptional circumstances. See Harrington v. City of Chi, 433 F.3d 542, 546 (7th Cir.2006). Finally, Collins’s contention that Judge Mills was biased and that he failed to adequately accommodate her pro se status lacks merit. We understand this argument as a challenge to the court’s denial of her motion to recuse Judge Mills, which Collins filed immediately after our remand in 2005. In her motion Collins contended that Judge Mills had rushed to dismiss her case, had never disclosed his purported relationship to the defendants, and had displayed prejudice against her and other African Americans. In denying the motion. Judge Mills reasoned that Collins’s allegations were unsubstantiated personal attacks and failed to establish any evidence of bias. At" }, { "docid": "11138901", "title": "", "text": "immunity is ineffaceable even in the presence of “grave procedural errors.” Stump v. Sparkman, 435 U.S. 349, 359, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); see also Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 357, 20 L.Ed. 646 (1871) (distinguishing the “validity of the act” from the question of whether judicial immunity attaches); New Eng. Cleaning Servs., 199 F.3d at 546 (similar). The errors here (if errors at all) were not grave and, in all events, fall within the prophylaxis afforded by Stump. If more were needed — and we doubt that it is — there is an even more basic defect in the plaintiffs “absence of jurisdiction” argument. His claims amount to nothing more than claims of error that could, and should, have been addressed in the will contest itself. After all, “[w]ere collateral and retrospective attacks on technical defects of court appointments permitted, the court’s work in an already difficult litigation field would often be undone, with consequent uncertainty, delay, and frustration.” Brown, 291 F.3d at 94. The plaintiff could, for example, have brought the alleged procedural flaws to the attention of the probate court and, if that court denied relief, could have raised the points on appeal. After all, one of the primary purposes of judicial immunity is to “establish appellate procedures as the standard system for correcting judicial error.” Forrester, 484 U.S. at 225, 108 S.Ct. 538. Here, too, the plaintiff has a fallback position. He strives to persuade us that the special master acted in the complete absence of jurisdiction because his failure to respond to the plaintiffs letters anent discovery orders constituted an abandonment of his office (and, hence, his jurisdiction to act). We are not convinced. The law is clear that even bad faith or malice will not divest the cloak of judicial immunity. See, e.g., Mireles, 502 U.S. at 11, 112 S.Ct. 286. A fortiori, negligence in performing judicial duties affects neither a defendant’s immunity nor his jurisdiction; the judicial officer (or the person performing tasks intimately associated with core judicial functions) retains the power, whether or not negligent, to act" }, { "docid": "13055828", "title": "", "text": "there was no substantial public interest in the district court’s refusal to apply the Federal Tort Claims Act’s judgment bar. See id. at 960. Here, avoiding the temporary imposition of sanctions pending final review would likewise not serve a substantial public interest. See id. at 959 (explaining that qualified immunity claims can be reviewed under the collateral order doctrine because of “threatened disruption of governmental functions”); see also United States v. Rose, 28 F.3d 181, 186 (D.C.Cir.1994) (stating that “separation of powers immunity should protect legislators from the burden of litigation and diversion from congressional duties”). Because an alleged right to avoid discovery sanctions is not forever extinguished once fees are paid, the SAA’s sovereign immunity from discovery sanctions, if it exists at all, does not depend on our immediate review. The district court’s decision'that the SAA has no sovereign immunity from Rule 37 sanctions, though temporarily unfavorable to the SAA, is not permanently unreviewable and therefore causes no irreparable harm to the SAA, nor any threat to the public interest. If harm is done to the SAA’s alleged interest by the district court’s order, it may be remedied on appeal after final judgment. No rights at stake will be “irretrievably lost,” id. at 871-72, 114 S.Ct. 1992 (quoting Richardson-Merrell, 472 U.S. at 431, 105 S.Ct. 2757). We do not, therefore, distinguish the case before us from those in which we have previously found interim discovery sanctions ineligible for immediate appeal, such as National Association of Criminal Defense Lawyers, Inc. v. U.S. Department of Justice, 182 F.3d 981, 985 (D.C.Cir.1999) and Trout v. Garrett, 891 F.2d 332, 335 (D.C.Cir.1989). We cannot see how the consequences of the SAA’s temporary subjection to a district court’s mistaken Rule 37 order could constitute the kind of “irreparable harm” contemplated under Cohen and its progeny. Like immunity from service of process (leading to lack of personal jurisdiction), immunity from Rule 37 sanction is better viewed as a right not to be subject to a binding judgment. Such a right may be vindicated effectively after trial. See Van Cauwenberghe, 486 U.S. at 524, 108 S.Ct." }, { "docid": "22690347", "title": "", "text": "an oft-repeated error, or manifests a persistent disregard of the federal rules. (5) The district court’s order raises new and important problems, or issues of law of first impression. Bauman, 557 F.2d at 654-55 (citations omitted); see also Cordoza, 320 F.3d at 998. Those guidelines “often raise questions of degree[,]” and “[t]he considerations are cumulative and proper disposition will often require a balancing of conflicting indicators.” Bauman, 557 F.2d at 655. V. WHETHER THE DISTRICT COURT CLEARLY ERRED A. The Appropriateness of Deferring a Ruling on Immunity in This Case The dispositive factor in this case is whether the district court’s order is clearly erroneous as a matter of law. This is because the first two Bauman factors weigh in favor of granting mandamus. The defendants, if they were immune, would be prejudiced by the order continuing the litigation, even for the duration of limited discovery, because they would be required to continue to participate in litigation. The appellate process, after final judgment,, could not redress that injury. Mitchell, 472 U.S. at 525, 105 S.Ct. 2806. The last two factors do not support granting relief because there was no repeated error or disregard of rules, and the issue of immunity is not one of first impression. Therefore, we turn to the critical issue of whether the district court clearly erred as a matter of law in deferring a ruling on immunity until completion of limited discovery on what functions the defendants performed. This requires us to consider when state officials enjoy absolute immunity from suit. . . The civil-rights statute, 42 U.S.C. § 1983, was enacted in 1871. It enables those individuals whose rights were deprived by persons acting under color of state law to bring their claims in federal court. On its face, § 1983 does not include any defense of immunity. Nevertheless, the Supreme Court'has recognized that when Congress enacted § 1983, it was aware of a well-established and well-understood common-law tradition that extended absolute immunity to individuals perform ing functions necessary to the judicial process. See Forrester v. White, 484 U.S. 219, 225-26, 108 S.Ct. 538, 98" }, { "docid": "22136687", "title": "", "text": "Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 542, 98 L.Ed.2d 555 (1988). The official seeking immunity bears the burden of showing that it is justified by the function in question. See id. Under its historical and functional approach, the Supreme Court has recognized the defense of absolute immunity from civil rights suits in several well-established contexts involving the judicial process. This immunity has given functionaries in the judicial system the ability to perform their tasks and apply their discretion without the threat of retaliatory § 1983 litigation. Thus, a judge acting in his judicial capacity is absolutely immune from suits, unless he acts without any colorable claim of jurisdiction. See Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 1104-05, 55 L.Ed.2d 331 (1978); Pierson v. Ray, 386 U.S. 547, 553-55, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967). Witnesses, including public officials and private citizens, are immune from civil damages based upon their testimony. See Briscoe v. LaHue, 460 U.S. 325, 341, 345-46, 103 S.Ct. 1108, 1118, 1120-21, 75 L.Ed.2d 96 (1983). The Court has also granted absolute immunity to prosecutors for activities that are “intimately associated with the judicial process” such as initiating and pursuing a criminal prosecution and presenting the state’s case in court. Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 994-95, 47 L.Ed.2d 128 (1976). A prosecutor’s administrative and investigative duties, however, are not immune. See id. at 430-31, 96 S.Ct. at 994-96. We have provided social workers absolute immunity for actions involving the initiation and prosecution of child custody or dependency proceedings. In Ernst v. Child & Youth Servs. of Chester County, 108 F.3d 486 (3d Cir.1997), we held that child welfare workers are entitled to absolute immunity for their actions on behalf of the state in preparing for, initiating, and prosecuting dependency proceedings, and that this immunity was broad enough to include the formulation and presentation of recommendations to the court in the course of the proceedings. In reaching this conclusion, we first reasoned that, similar to prosecutors who are responsible for the initiation of criminal proceedings," }, { "docid": "2141005", "title": "", "text": "absolute judicial immunity has been extended to non-judicial officers who perform “quasi-judicial” duties. [FN5] [Citations omitted.] Quasi-judicial immunity extends to those persons performing tasks so integral or intertwined with the judicial process that these persons are considered an arm of the judicial officer who is immune. [Citations omitted.] FN5. The United States Supreme Court has recognized the need for government officials to be able to make impartial decisions without the threat of personal liability for actions taken pursuant to their official duties. See, e.g., Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978)(agency attorney); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978)(judge); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (prosecutors); Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967)(legislators). The Supreme Court has endorsed a “functional” approach in determining whether an official is entitled to absolute immunity. Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 542-43, 98 L.Ed.2d 555 (1988); Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 1939, 114 L.Ed.2d 547(1991). Under this approach, a court “looks to ‘the nature of the function performed, not the identity of the actor who performed it.’ ” Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S.Ct. 2606, 2613, 125 L.Ed.2d 209(1993) (quoting Forrester, 484 U.S. at 229, 108 S.Ct. at 545). For example, a prosecutor who undertakes acts in the preparation or initiation of judicial proceedings is entitled to absolute immunity. Id. On the other hand, when a prosecutor performs administrative acts unrelated to judicial proceedings, qualified immunity is all that is available. Id. Bush, 38 F.3d at 847. See also Forrester v. White, 484 U.S. 219, 227, 108 S.Ct. 538, 544, 98 L.Ed.2d 555 (1988) (“[Ijmmunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches.”). The United States Supreme Court has stated that in applying the functional approach to immunity issues, a court must not only examine the nature of the functions with which the official has been" }, { "docid": "13037465", "title": "", "text": "performed by a judge and whether the parties dealt with the judge in his judicial capacity. Stump, 435 U.S. at 362, 98 S.Ct. at 1107-1108; Dellenbach, 889 F.2d at 760; Eades, 810 F.2d at 725-726. Unlike a judge who fires a court employee, see Forrester v. White, 484 U.S. 219, 229, 108 S.Ct. 538, 545, 98 L.Ed.2d 555 (1988), a judge who assigns a case, considers pretrial matters, and renders a decision acts well within his or her judicial capacity. Because Judge Barron acted within the scope of his jurisdiction, and the acts were within his judicial capacity, he is entitled to absolute judicial immunity. Further John should have addressed any complaint he had regarding Judge Barron’s handling of the case to the state appellate court. See Forrester, 484 U.S. at 227, 108 S.Ct. at 544 (“[m]ost judicial mistakes or wrongs are open to correction through ordinary mechanisms for review, which are largely free of the harmful side-effects inevitably associated with exposing judges to personal liability.”). Therefore the district court properly dismissed Judge Barron from the ease under Rule 12(b)(6). See Williams v. Faulkner, 837 F.2d 304, 307 n. 5 (7th Cir.), aff'd sub nom. Neitzke v. Williams, 491 U.S. -, 109 S.Ct. 1827, 104 L.Ed.2d 338 (Rule 12(b)(6) is applicable when the defendants are clearly immune from suit). Adequacy of Appellant’s Brief The only issue we address in Gallagher I, No. 89-2510, and Gallagher II, No. 89-1848, is whether we should dismiss these appeals due to the inadequacy of the appellants’ briefs. In Gallagher I, John argues that the district court erred in granting summary judgment to the defendants other than Judge Barron. The argument section of Harry John’s brief consists of two brief paragraphs which read as follows: Plaintiff Appellant should be permitted to maintain this action because Judge Barron entered into a conspiracy with the other defendants to deprive Mr. John of his constitutional rights and acted under color of state law. In the case of Dennis v. Sparks[,] 449 U.S. 24 [101 S.Ct. 183, 66 L.Ed.2d 185 (1980) ], the court ruled that private persons, jointly" }, { "docid": "23516262", "title": "", "text": "is impossible to wring damages from the deputies. Cf. Ruehman v. Sheahan, 34 F.3d 525 (7th Cir.1994). Scott was formally based on the eleventh amendment; we equated a suit against the deputies with a suit against the court, and therefore against the state. Take away the eleventh amendment and the result is the same; if a suit seeking damages for the execution of a judicial order is just a way to contest the order itself, then the Rooker-Feldman doctrine is in play. McNamara, who entered Homola’s property to conduct the court-ordered inspection on October 29, 1993, therefore is not amenable to suit under § 1983 in federal court, whether Homola has sued McNamara in his personal or his official capacity. All three of Homola’s suits against the attorneys and city employees should have been dismissed for want of jurisdiction. The suit against Judge Stack attempts to elide both this problem and the immunity defense by arguing that the judge acted in the absence of jurisdiction. Homola asserts that a notice of appeal he filed prevented the'judge from ordering his arrest. As the district court pointed out, the state’s appellate court dismissed the appeal before the arrest occurred. At all events, Homola misunderstands the role of “jurisdiction” in the law of judicial immunity. Notices of appeal affect the temporal allocation of functions among tiers of the judicial system. What matters for immunity, however, is subject-matter jurisdiction. See Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). The judge must be acting as a judge, rather than as an ombudsman or administrative official. Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). Judge Stack had subject-matter jurisdiction and played a judicial role. That is sufficient for immunity. As we said at the outset, the judicial system cannot tolerate litigants who refuse to accept adverse decisions. Monetary sanctions are the usual recourse, with sterner stuff employed only if the lesson is not learned. Homola has abused the judicial process, and these four appeals are as weak as the underlying claims. It is time to do" }, { "docid": "22566314", "title": "", "text": "excess of his authority.” Stump, 435 U.S. at 356-57, 98 S.Ct. 1099; Moreover, “[a] judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors.” Id. at 359, 98 S.Ct. 1099. “ ‘[Ijmmunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches.’ ” Valdez v. City and County of Denver, 878 F.2d 1285, 1287 (10th Cir.1989) (quoting Forrester v. White, 484 U.S. 219, 227, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)). Consequently, “[ijmmunity which derives from judicial immunity may extend to persons other than a judge where performance of judicial acts or activity as an official aid of the judge is involved.” Henriksen, 644 F.2d at 855. Thus, absolute judicial immunity has been extended to non-judicial officers where “their duties had an integral relationship with the judicial process.” Eades v. Sterlinske, 810 F.2d 723, 726 (7th Cir.1987). Mr. Whitesel argues that pursuant to state statute, the additional, discretionary provisions of the TRO could only be issued by a judge following a hearing, and not by the pretrial service officers. Therefore, he contends that, because he did not receive a hearing before a judge, the pretrial service officers falsely certified that the TRO was a true and correct copy of an original order issued by a judge. We are not persuaded by Mr. Whitesel’s argument. “There can be no doubt that ... the decision whether to order the pretrial release of a criminal defendant ... [is an] important part[ ] of the judicial process in criminal cases.” Tripati v. INS, 784 F.2d 345, 348 (10th Cir.1986). Thus, we have held that “[those] who assist in these determinations perform critical roles[,] ... intimately associated with the judicial phase of the criminal process,” and, there fore, they are entitled to absolute immunity from civil suit for damages. Id. Here, the undisputed evidence demonstrates that the pretrial service officers were designated by the judges of the First Judicial District to act as bond commissioners. Colo.Rev.Stat. § 16 — 4—105(1)(o) permits" }, { "docid": "22566322", "title": "", "text": "omitted); see also Ashbrook v. Hoffman, 617 F.2d 474, 476 (7th Cir.1980). The reasoning of Valdez is fully applicable here. The evidence establishes that the pretrial service officers were acting pursuant to judicial directives and were expected to sign and deliver the TROs on the standard form approved by the First Judicial District. Therefore, even if their actions could be characterized as ministerial, they would still be absolutely immune from civil suit. See Valdez, 878 F.2d at 1289-90. Finally, we note that this is a paradigmatic case for judicial immunity in that it supports the most common justification for the doctrine: there are effective, alternative methods of protecting litigants against judicial errors that are less detrimental to the judicial process than exposing judges to liability for civil claims. In Forrester v. White, the Supreme Court observed that: [Sjuits against judges [are not] the only available means through which litigants can protect themselves from the consequences of judicial error. Most judicial mistakes or wrongs are open to correction through ordinary mechanisms of review, which are largely free of the harmful side-effects inevitably associated with exposing judges to personal liability. 484 U.S. 219, 227, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). Here, the error of which Mr. Whitesel complains was corrected by the judicial process. Mr. Whitesel obtained a hearing on the lawfulness of the TRO and the state court ruled in his favor, concluding that the discretionary orders were invalid because they were issued in violation of state statutory procedure. Thereafter, the government dismissed the charges against Mr. Whitesel for violating the TRO. For all of the foregoing reasons we conclude the court did not err in granting summary judgment in favor of the pretrial service officers. B. Board of County Commissioners Municipal entities and local governing bodies are not entitled to the traditional common law immunities for section 1983 claims. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Thus, to establish a claim for damages under section 1983 against the Board, Mr. Whitesel must prove the Board" }, { "docid": "22683795", "title": "", "text": "this case, appellees determined that Olsen had failed to follow mandated regulations and therefore had no license to reinstate. Because Olsen had a right to judicial review, see Idaho Code § 67-5270, she could have alleged on appeal that this decision was motivated by religious or personal animus rather than any failure on her part to follow regulations. ' Though Olsen exercised her right to appeal that decision, she chose voluntarily to dismiss that claim and instead bring suit against appellees. We believe that Olsen’s litigation strategy is, therefore, in direct contravention of the policy behind absolute immunity: Absolute immunity aids in the “discouragement of collateral attacks, thereby helping to establish appellate procedures as the standard system for correcting judicial error.” Buckles, 191 F.3d at 1136 (quoting Forrester v. White, 484 U.S. 219, 225, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) (internal alterations and quotation marks omitted)). By choosing to circumvent established appellate review procedures, Olsen engaged in the very strategy that absolute immunity is intended to counteract and decided that “[t]he decision maker rather than the decision would become the target.” Buckles, 191 F.3d at 1136. We refuse to allow such a result in this case. Finally, the only allegation of Olsen’s complaint that avoids both the statute of limitations and the protections of immunity involves the Board’s billing statement sent to Olsen’s counsel for costs and fees incurred with respect to her public records request. We conclude that the billing practices of the Board are not sufficiently comparable to judicial or prosecutorial functions to be accorded the protections of absolute immunity. See Mishler, 191 F.3d at 1008. Indeed, such actions are administrative in nature and are not, therefore, normally associated with the traditional judicial or prosecutorial functions. See id. (holding that the “act of responding to inquiries [was] ... an administrative function entailing examination of records and sending of correspondence”). However, though we find that this action is both ministerial and within the limitations period, we conclude that it cannot support a viable § 1983 claim. We agree with the district court that Olsen “does not allege that" }, { "docid": "18951509", "title": "", "text": "of child support orders for two former children in the District of Columbia.”). Further, the District has an overriding interest in enforcement of child support obligations. Finally, Mr. Delaney can bring his due process challenge before the D.C. Superior Court as a defense in any proceeding to enforce his child support obligations. See JMM Corp., 378 F.3d at 1121 & 1127 (a defendant in a District of Columbia proceeding has an opportunity to raise constitutional claims as defenses). 3. Quasi-Judicial and Prosecutorial Immunity From Liability for Due Process Claims under Counts 1, 4, and 5 Mr. Delaney also seeks monetary damages for the alleged infringement of his Fifth Amendment due process right. He asserts that he was subjected to “false” court orders, improper calculation of his probation period, erroneous hearing notices, the court’s failure to put court documents in the correct file, incorrect posting of child support payments, and an inappropriate refusal to engage in plea bargaining. These claims are barred by quasi-judicial and prosecutorial immunity. Judges have absolute immunity from any lawsuit arising from the performance of judicial functions. Forrester v. White, 484 U.S. 219, 225, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). Such “[i]mmunity is defined by the functions it protects and not by the person to whom it attaches.” Id. at 227, 108 S.Ct. 538. Immunity “applies to all acts of auxiliary court personnel that are basic and integral parts of the judicial function.” Sindram v. Suda, 986 F.2d 1459, 1461 (D.C.Cir.1993). “Suits against clerks for damages, like those against judges, are generally not necessary to control unconstitutional conduct in light of the numerous safeguards that are built into the judicial process, especially the correct-ability of error on appeal.” Id. (internal quotation marks and citation omitted). Thus, others who perform judicial functions enjoy quasi-judicial absolute immunity, including law clerks and court clerks. Wagshal v. Foster, 28 F.3d 1249, (D.C.Cir. 1994) (law clerks); Sindram, 986 F.2d at 1461 (court clerks). For example, the scheduling of hearings is protected by absolute immunity. Doyle v. Camelot Care Ctrs., Inc., 305 F.3d 603, 622 (7th Cir. 2002). Further, a prosecutor who" }, { "docid": "22136686", "title": "", "text": "an immunity meets this standard, a court must first determine whether “an official was accorded immunity from tort actions at common law when the Civil Rights Act was enacted in 1871.” Malley v. Briggs, 475 U.S. 335, 340, 106 S.Ct. 1092, 1095, 89 L.Ed.2d 271 (1986). If a common-law counterpart is found, a court must next determine whether § 1983’s history or purposes nonetheless discourage recognition of the same immunity in § 1983 actions. See id. Even if an official did not enjoy absolute immunity at common law, she may still be entitled to immunity if she performs “special functions” that are similar or analogous to functions that would have been immune when Congress enacted § 1983. See Butz v. Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978). This “functional approach” looks to the nature of the function performed, not the identity of the actor who performed it and evaluates the effect that exposure to particular forms of liability would likely have on the appropriate exercise of that function. See Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 542, 98 L.Ed.2d 555 (1988). The official seeking immunity bears the burden of showing that it is justified by the function in question. See id. Under its historical and functional approach, the Supreme Court has recognized the defense of absolute immunity from civil rights suits in several well-established contexts involving the judicial process. This immunity has given functionaries in the judicial system the ability to perform their tasks and apply their discretion without the threat of retaliatory § 1983 litigation. Thus, a judge acting in his judicial capacity is absolutely immune from suits, unless he acts without any colorable claim of jurisdiction. See Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 1104-05, 55 L.Ed.2d 331 (1978); Pierson v. Ray, 386 U.S. 547, 553-55, 87 S.Ct. 1213, 1217-18, 18 L.Ed.2d 288 (1967). Witnesses, including public officials and private citizens, are immune from civil damages based upon their testimony. See Briscoe v. LaHue, 460 U.S. 325, 341, 345-46, 103 S.Ct. 1108, 1118, 1120-21, 75 L.Ed.2d" }, { "docid": "14106176", "title": "", "text": "of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). This entitlement is “effectively lost if a case is erroneously permitted to go to trial.” Swint, 514 U.S. at 42, 115 S.Ct. at 1208 (emphasis omitted). In the parlance of the collateral order doctrine, a claim of immunity from suit is “effectively unreviewable” once the defendant is forced to go to trial, because he or she is permanently deprived of the right to avoid the burdens of litigation. Id. For this reason, we have heard appeals from interlocutory orders denying a defendant’s assertion of immunity from suit. See, e.g., Cantu v. Rocha, 77 F.3d 795, 804 (5th Cir.1996); Sorey v. Kellett, 849 F.2d 960, 962 (5th Cir.1988); Williams v. Collins, 728 F.2d 721, 726 (5th Cir.1984). We must, however, “view claims of a ‘right not to be tried’ with skepticism, if not a jaundiced eye.” Digital Equipment, 511 U.S. at 873, 114 S.Ct. at 1999. As the Supreme Court has acknowledged, “virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a ‘right not to stand trial.’ ” Id. at 873,114 S.Ct. at 1998. Consequently, when we assess whether interlocu tory review is appropriate, “[t]he critical question ... is whether ‘the essence’ of the claimed right is a right not to stand trial,” Van Cauwenberghe v. Biard, 486 U.S. 617, 524, 108 S.Ct. 1945, 1950, 100 L.Ed.2d 517 (1988). Thus our jurisdiction to review the order now appealed turns on whether Allied’s claim of absolute immunity “provides a true immunity from suit and not a simple defense to liability.” Sorey, 849 F.2d at 962; see also Swint, 514 U.S. at 43, 115 S.Ct. at 1208 (denying jurisdiction under the collateral order doctrine where defendant’s claim was based on a “mere defense to liability” and not an “immunity from suit”). Allied bases its immunity claim on the rule of Texas law that communications made during the course of judicial, quasi-judicial, or legislative proceedings are “absolutely privileged.” Reagan v. Guardian Life Ins., 140 Tex. 105, 166 S.W.2d 909," } ]

[ { "docid": "23551792", "title": "", "text": "as the Court of Appeals held that summary judgment was inappropriate on Lesage’s §1983 action seeking damages for the school’s rejection of his application for the 1996-1997 academic year even if petitioners conclusively established that Lesage would have been rejected under a race-neutral policy, its decision is inconsistent with this Court’s well-established framework for analyzing such claims. Under Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), even if the government has considered an impermissible criterion in making a decision adverse to the plaintiff, it can nonetheless defeat liability by demonstrating that it would have made the same decision ab sent the forbidden consideration. See id., at 287. See also Crawford-El v. Britton, 523 U.S. 574, 593 (1998); Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668, 675 (1996). Our previous decisions on this point have typically involved alleged retaliation for protected First Amendment activity rather than racial discrimination, but that distinction is immaterial. The underlying principle is the same: The government can avoid liability by proving that it would have made the same decision without the impermissible motive. Simply put, where a plaintiff challenges a discrete governmental decision as being based on an impermissible criterion and it is undisputed that the government would have made the same decision regardless, there is no cognizable injury warranting relief under § 1983. Of course, a plaintiff who challenges an ongoing race-conscious program and seeks forward-looking relief need not affirmatively establish that he would receive the benefit in question if race were not considered. The relevant injury in such cases is “the inability to compete on an equal footing.” Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656, 666 (1993). See also Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 211 (1995). But where there is no allegation of an ongoing or imminent constitutional violation to support a claim for forward-looking relief, the government’s conclusive demonstration that it would have made the same decision absent the alleged discrimination precludes any finding of liability. Lesage’s second amended complaint sought injunctive relief and" } ]

[ { "docid": "22846043", "title": "", "text": "and not in retaliation for the speech.” Jeffries v. Harleston, 52 F.3.d 9, 13 (2d Cir.1995). As this last element suggests, “even if the Pickering balance is resolved in the employer’s favor, the employee may still demonstrate liability by proving that the employer disciplined the employee in retaliation for the speech, rather than out of fear of the disruption.” Lewis, 165 F.3d at 163; accord Crawford-El v. Britton, 523 U.S. 574, 585, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). (noting “re taliation for the exercise of free speech” as an example of a “claim[ ] for which an official’s motive is a necessary element”) (citing Pickering, 391 U.S. at 574, 88 S.Ct. 1731); Sheppard v. Beerman, 94 F.3d 823, 827 (2d Cir.1996). Consequently, although the Pickering test presents a question of law, resolution of a First Amendment retaliation claim on a motion for summary judgment may not be possible if the plaintiff introduces sufficient evidence to create a genuine issue of material fact on the question of defendant’s improper intent, which is a question of fact. See Sheppard, 94 F.3d at 828 (plaintiff may avoid summary judgment on First Amendment retaliation claim based on qualified immunity defense if he can show “particularized evidence of direct or circumstantial facts supporting his claim of unconstitutional motive”); accord Acevedo-Garcia v. Vera-Monroig, 204 F.3d 1, 12 (1st Cir.2000); Kimberlin v. Quinlan, 199 F.3d 496, 502 (D.C.Cir.1999); Hoard v. Sizemore, 198 F.3d 205, 219 (6th Cir.1999); see also Crawford-El, 523 U.S. at 589, 118 S.Ct. 1584 (distinguishing between “the plaintiffs showing of improper intent (a pure issue of fact), [and] the separate qualified immunity question ... which is an ‘essentially legal question’ ”). 2. The District Court’s Opinion We read the district court’s opinion to reflect its belief that this is a case in which a fact issue as to retaliatory motive precludes an award of summary judgment. Had the district court attempted to resolve the Pickering balance as a matter of law, presumably it would have taken all of the evidence in the light most favorable to plaintiffs and would have proceeded to conduct" }, { "docid": "3323154", "title": "", "text": "the Supreme Court clarified in Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998), [A]t least with certain types of claims, proof of an improper motive is not sufficient to establish a constitutional violation — there must also be evidence of causation. Accordingly, when a public employee shows that protected [conduct] was a “motivating factor” in an adverse employment decision, the employer still prevails by showing that it would have reached the same decision in the absence of the protected conduct. Id. at 593, 118 S.Ct. 1584 (emphasis added). Thus, even if a plaintiff meets his or her initial burden of showing that political affiliation was a motivating factor for an employment decision, that is insufficient to establish discrimination as a matter of law because the plaintiffs case at that point does not “distinguish^ ] between a result caused by a constitutional violation and one not so caused.” Mt. Healthy, 429 U.S. at 286, 97 S.Ct. 568. As the Supreme Court noted, to adopt a view of causation that focuses solely on whether protected conduct played a part in an employment decision — the view that plaintiffs argued here — would put an “employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied [otherwise].” Id. at 285, 97 S.Ct. 568. To give an example, a plaintiffs political affiliation may have been an employer’s motivating reason for terminating the plaintiff. Nevertheless, the employer may still defeat liability for that termination by meeting its dual burden under Mt. Healthy — by proving, for example, that the plaintiff had been caught stealing from the employer and that the employer fires every employee who steals from it. Carrying that line of . argument to this case, defendants here were entitled to defeat liability by' showing that plaintiffs’ positions were obtained in violation of Puerto Rico law and that, even if political animus was a factor, defendants would have taken corrective action anyway against every employee. whose position was obtained in violation of law. If there is no dispute that the" }, { "docid": "7046434", "title": "", "text": "motives, if ... the defendant showed that she would have reached the same decision even in the absence of the employee’s protected speech.”) (citing Crawford-El, 523 U.S. at 592-93, 118 S.Ct. 1584). The opinion of the majority does not address, and presumably rejects, this premise, which has been recognized in a series of Supreme Court decisions, including Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), and Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). It assumes instead that the jury’s finding of unconstitutional motive demonstrates, beyond cavil, the existence of a constitutional violation. It does not discuss whether, based on his repeated disruptions and noncompliance with procedural rules of the Council, Monteiro would have been ejected from the meeting even if Perkins-Auguste had not harbored an intent to punish him for his views. Perhaps the majority’s reluctance to confront the issue stems from the District Court’s failure to instruct the jury on this point. Despite evidence that Perkins-Au-guste would have expelled Monteiro from the meeting regardless of his previously expressed opinions, the jury was not instructed on this aspect of causation analysis and never made a finding on the subject. Perkins-Auguste did not object to this omission during trial, and has not raised it on appeal, and we are thus constrained to assume that the jury was properly charged. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.1993) (noting that issues not raised on appeal are abandoned). Nevertheless, because causation constitutes an essential aspect of Monteiro’s claim, and because Perkins-Auguste argues the matter in her briefs, we must consider whether a finding of causation would have been supported by the evidence. The issue presents a close question. Monteiro spoke out of turn during the meeting and repeatedly interjected comments during Perkins-Auguste’s speech. He did not comply with her rulings and refused to allow Perkins-Auguste to conclude her remarks uninterrupted. These circumstances suggest that Perkins-Au-guste, or indeed any legislative leader, would have taken the same actions regardless of an intent to retaliate against" }, { "docid": "7702055", "title": "", "text": "been taken; we say that upon a prima facie showing of retaliatory harm, the burden shifts to the defendant official to demonstrate that even without the impetus to retaliate he would have taken the action complained of (such as firing the employee). See Mt. Healthy [City Sch. Dist. Bd. of Educ. v. Doyle ], 429 U.S. [274,] 287 [97 S.Ct. 568, 50 L.Ed.2d 471 (1977) ]. If there is a finding that retaliation was not the but-for cause of the discharge, the claim fails for lack of causal connection between unconstitutional motive and resulting harm, despite proof of some retaliatory animus in the official’s mind. See ibid. It may be dishonorable to act with an unconstitutional motive and perhaps in some instances be unlawful, but action colored by some degree of bad motive does not amount to a constitutional tort if that action would have been taken anyway. See Crawford-El [v. Britton, 523 U.S. 574,] 593 [118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) ]; Mt. Healthy, supra, at 285-286 [97 S.Ct. 568]. 547 U.S. at 260, 126 S.Ct. 1695 (parallel citations omitted). The need to establish causation, when coupled with the recognition that an officer’s duties are “difficult and dangerous” and “often require immediate action,” Duran, 904 F.2d at 1376, support requiring that a plaintiff plead and prove an absence of probable cause when claiming a retaliatory booking based on statements made after he was laivfully detained. Otherwise, officers may face lawsuits and liability for retaliation even when they have probable cause to book the detainee. If the officer has probable cause to book a detained individual based, in part, on the person’s post-detention actions or statements, there is no causation; and thus, there is no cause of action for violation of a constitutional right. See Hartman, 547 U.S. at 260, 126 S.Ct. 1695. The reasons underlying the Supreme Court’s opinion in Reichle also require a showing of a lack of probable cause in a § 1983 action based on the plaintiffs post-detention speech. Ford’s claim of retaliation presents a “tenuous causal connection between the defendant’s alleged animus and the" }, { "docid": "7693902", "title": "", "text": "of proving a constitutional violation,” which is the first step in the qualified immunity inquiry. As we have explained, the rest of the Crawford-El opinion confirms this point. Indeed, in the footnote immediately preceding the statement that \"evidence of improper motive is irrelevant on the issue of qualified immunity,\" Crawford-El quotes an opinion of Justice Ginsburg, when she was a judge on the District of Columbia Circuit, and calls it a \"correct understanding of Harlow. ...” Had the Court [in Harlow] intended its formulation of the qualified immunity defense to foreclose all inquiry into the defendants' state of mind, the Court might have in structed the entry of judgment for defendants Harlow and Butterfield on the constitutional claim without further ado. In fact, the Court returned the case to the district court in an open-ended remand, a disposition hardly consistent with a firm intent to delete the state of mind inquiry from every constitutional tort calculus. Crawford-El, 523 U.S. at 589 n. 11, 118 S.Ct. 1584 (quoting Martin v. D.C. Metro. Police Dept. 812 F.2d 1425, 1432 (D.C.Cir.1987)(al-teration and emphasis in original)). . Many of the qualified immunity cases use the phrases \"substantial factor” and “motivating factor” interchangeably to describe the causal relationship between the protected conduct and the adverse action taken against the plaintiff. We prefer to use the phrase \"substantial factor” to avoid confusion with the earlier discussion of motivation, where motivation, rather than referring to causation, refers to whether Swift was concerned about legitimate government interests or impermissible retaliation. See Stella, 63 F.3d at 74-75 (explaining that \"plaintiff must show ... that his speech was a substantial or motivating factor for the adverse action taken against him ... and the defendant must then prove ... that the employer would have acted in the same way toward the plaintiff 'even in the absence of the protected conduct.’ ” (citing Mt. Healthy, 429 U.S. at 287 97 S.Ct. 568)(in-ternal citations omitted)). . Whether a reasonable person in Swift's position would have known that her actions violated that clearly established right is a different question. We address that question in" }, { "docid": "22365428", "title": "", "text": "to inhibit exercise of the protected right[’;] ... the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.” Hartman, 547 U.S. at 256, 126 S.Ct. 1695 (first alteration in original) (citation omitted) (quoting Crawford-El v. Britton, 523 U.S. 574, 588 n. 10, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998)). We have held that “to demonstrate a First Amendment violation, a plaintiff must provide evidence showing that ‘by his actions [the defendant] deterred or chilled [the plaintiffs] political speech and such deterrence was a substantial or motivating factor in [the defendant’s] conduct.’” Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir.1999) (quoting Sloman v. Tadlock, 21 F.3d 1462, 1469 (9th Cir.1994)). Lacey need not show his “speech was actually inhibited or suppressed.” Id. Rather, we consider “whether an official’s acts would chill or silence a person of ordinary firmness from future First Amendment activities.” Id. (quoting Crawford-El v. Britton, 93 F.3d 813, 826 (D.C.Cir.1996), vacated on other grounds, 520 U.S. 1273, 117 S.Ct. 2451, 138 L.Ed.2d 210 (1997)). Lacey must allege facts ultimately enabling him to “prove the elements of retaliatory animus as the cause of injury,” with causation being “understood to be but-for causation.” Hartman, 547 U.S. at 260, 126 S.Ct. 1695; see id. (“It may be dishonorable to act with an unconstitutional motive and perhaps in some instances be unlawful, but action colored by some degree of bad motive does not amount to a constitutional tort if that action would have been taken anyway.”); Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 901 (9th Cir.2008). Lacey has adequately alleged that Wilenchik’s primary intent was to silence the New Times’s protected speech, which came in the form of newspaper articles criticizing public officials. First, Wilenchik’s actions were sufficient to chill Lacey’s protected speech. Wilenchik issued broad, invalid subpoenas demanding that the paper reveal its sources, disclose its reporters’ notes, and reveal information about anyone who visited the New Times’s website; Wilenchik’s motions for arrest warrants, contempt findings, and fines show that he meant the New Times to fear" }, { "docid": "2759105", "title": "", "text": "S.J.Mot. at 20.) Williams does not dispute this assertion. Instead, he contends in his opposition brief that he “could not be arrested in retaliation for his performance on the [grand jury witness] stand.” (Brf. in Opp. to Checchia, et al. S.J.Mot. at 18.) He also asserts that there is a jury question on his retaliation claim because his attorney had contacted the Attorney General’s Office about the expunged order and the possibility of legal action. In analyzing a First Amendment retaliation claim, the Supreme Court has stated, “proof of an improper motive is not sufficient to establish a constitutional violation — there must also be evidence of causation. Accordingly, when a public employee shows that protected speech was a ‘motivating factor’ ... the employer still prevails by showing that it would have reached the same decision in the absence of the protected conduct.” Crawfordr-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 1594, 140 L.Ed.2d 759 (1998) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). In the instant case, Williams has not proffered any evidence that his threats caused the State Defendants to initiate his prosecution. There is no evidence that they had any control over the expungement of Williams’ records. Moreover, there is no evidence that the State Defendants were even aware of problems with implementing the expungement order. Contrary to Williams’ assertion, the fact that Williams’ lawyer may have complained to the Attorney General’s Office is not enough to support a reasonable inference that the moving defendants were motivated to retaliate against Williams, especially since they had nothing to do with that order. Summary judgment cannot be avoided by speculation and conjecture. Fogarty v. Boles, 121 F.3d 886, 890 (3d Cir.1997); Sterling Nat’l Mortgage Co. v. Mortgage Corner, Inc., 97 F.3d 39, 45 (3d Cir.1996). Moreover, there is evidence that the State Defendants would have reached the same result — that Williams should be prosecuted for perjury — regardless of whether Williams had threatened action against the Attorney General’s Office. District Attorney Gregor directed" }, { "docid": "7046437", "title": "", "text": "Anderson v. Creighton, 488 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). 1. Subjective intent plays a limited role in this analysis. It is considered as an element of the underlying claim when the right at issue is predicated on the official’s motive, but the presence of improper motive does not preclude qualified immunity. Grant v. City of Pittsburgh, 98 F.3d 116, 124 (3d Cir.1996). An official who has committed a constitutional violation, even one evincing improper intent, will nevertheless be immune from liability if an objective observer in the same position, given the same facts and knowing of the official’s improper motive, would not have recognized a constitutional violation under clearly established law. Mihos, 358 F.3d at 105 (“[A] defendant might prevail ... in a case alleging an intent-based constitutional tort, without need to inquire as to her motives, if ... the relevant law was not clearly established ....”) (citing Crawfordr-El, 523 U.S. at 592-93, 118 S.Ct. 1584). The opinion of the majority holds to the contrary. It concludes that proof of a motive-based constitutional tort is itself sufficient to bar immunity, regardless of the clarity (or obscurity) of the violation under existing law. This position is summarized in a quote from the Court of Appeals for the Second Circuit, on which the majority relies: “[W]here ... specific intent is actually an element of the plaintiffs claim as defined by clearly established law, it can never be objectively reasonable for a government official to act with the intent that is prohibited by law.” Locurto v. Safir, 264 F.3d 154, 169 (2d Cir.2001). The flaw in this approach has been recognized by the Supreme Court: “[Proof of] unconstitutional motive [will not] automatically carry[ ] a plaintiff to trial ... [if there is] doubt as to the illegality of the defendant’s particular conduct....” Crawford-El, 523 U.S. at 592-93, 118 S.Ct. 1584. An official may possess an unconstitutional motivation and yet be reasonably unaware of a constitutional violation. For example, an official who engages in a series of retaliatory maneuvers designed to punish an individual for prior speech may violate" }, { "docid": "11284666", "title": "", "text": "perspective of the speaker is the rationale for the restriction.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); see also Pahls v. Thomas, 718 F.3d 1210, 1230 (10th Cir. 2013) (noting that “a claim of viewpoint discrimination in contravention of the First Amendment requires a plaintiff to show that the defendant acted with a viewpoint-discriminatory purpose”). If Heaney were to have violated a reasonable restriction, such as a topic or time constraint, there would be no constitutional violation. See Crawford-El v. Britton, 523 U.S. 574, 593, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998); Lowery v. Jefferson Cty. Bd. of Educ., 586 F.3d 427, 435 (6th Cir. 2009) (“No violation occurs when the same result would have occurred in the absence of any illegitimate motive.”). However, Heaney was speaking on an approved topic and within his allotted time. Because Heaney was not silenced for violating a reasonable restriction, the First Amendment claim turns on Roberts’s motive or intent in silencing and ejecting Heaney from the meeting. The district court declined to grant summary judgment in favor of Roberts because the “pivotal question”—whether Roberts acted on an improper motive—is a factual dispute that should be resolved by a jury. Due to that question • of fact, the district court was unable to determine' whether Roberts is entitled to • qualified immunity. Assuming that there was viewpoint discrimination, the court found that Roberts did violate clearly established law and that the violation was objectively unreasonable. Specifically, the district court stated: “It is beyond cavil that a reasonable government official in Roberts’ position would have known that it would be impermissible under the First Amendment to prevent Hea-ney from speaking and to eject him from the meeting based on the message he wás conveying.” We agree. If Roberts acted with improper motive, he violated Heaney’s clearly established First Amendment 'right to be free from viewpoint discrimination in a limited public forum. Because we do not have jurisdiction to review the district court’s assessment that a -factual dispute exists, we dismiss Roberts’s" }, { "docid": "22258297", "title": "", "text": "qualified immunity. This circuit previously required plaintiffs to meet a heightened pleading standard when subjective intent is at issue and the defendant raises a qualified immunity defense. See, e.g., Breidenbach v. Bolish, 126 F.3d 1288 (10th Cir.1997). We recently held that the heightened pleading requirement does not survive the Supreme Court’s opinion in Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). Currier v. Doran, 242 F.3d 905, 2001 WL 202045 (10th Cir. Mar.1, 2001). Our decision in Currier is not, however, directly implicated in this case because we review the issues presented here in the context of summary judgment. Furthermore, unlike the dissent, we conclude Crawford-El does not affect our approach to qualified immunity questions at the summary judgment stage. Crawford-El should be read narrowly in light of the specific issue before the Court. The Court repeatedly noted that it was addressing standards of proof in the context of the merits of a constitutional claim involving improper motive, rather than in the context of a qualified immunity defense: “The court’s clear and convincing evidence requirement applies to the plaintiffs showing of improper intent (a pure issue of fact), not to the separate qualified immunity question whether the official’s alleged conduct violated clearly established law, which is an ‘essentially legal question.’ ” Crawford-El, 523 U.S. at 589, 118 S.Ct. 1584 (emphasis added). The Court distinguished Harlow and the qualified immunity context, concluding that, “unlike Harlow, the proper balance does not justify a judicial revision of the law to bar claims that depend on proof of an official’s motive.” Id. at 592, 118 S.Ct. 1584 (emphasis added). According to the Court, the dangers presented by a subjective standard in the qualified immunity context (primarily the danger that officials would be subjected to insubstantial claims) are not present in the context of claims involving improper intent. Id. at 593, 118 S.Ct. 1584. Hence, to apply Cratvford-EVs holding to qualified immunity would be to do what the Court explicitly cautioned against: it would conflate two distinct contexts. The dissent quotes the Court’s observation in Craioford-El that a heightened burden" }, { "docid": "7046433", "title": "", "text": "U.S. 574, 593, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (“[P]roof of an improper motive is not sufficient to establish a constitutional violation — there must also be evidence of causation.”). Proof that the same actions would have been taken regardless of the official’s intent cleaves the strand of causation between the constitutional violation and the harm, precluding success on the claim. See, e.g., Texas v. Lesage, 528 U.S. 18, 20-21, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999). No one would argue, for example, that an individual excluded from a public forum would have a basis for recovery if the decision to deny access was compelled by two independently operating regulations, one of which was viewpoint-biased and one of which was viewpoint-neutral. A restriction imposed as a result of improper intent will not give rise to liability if the same restriction would have been imposed otherwise. Mihos v. Swift, 358 F.3d 91, 105 (1st Cir.2004) (“[A] defendant might prevail ... in a case alleging an intent-based constitutional tort, without need to inquire as to her motives, if ... the defendant showed that she would have reached the same decision even in the absence of the employee’s protected speech.”) (citing Crawford-El, 523 U.S. at 592-93, 118 S.Ct. 1584). The opinion of the majority does not address, and presumably rejects, this premise, which has been recognized in a series of Supreme Court decisions, including Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), and Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). It assumes instead that the jury’s finding of unconstitutional motive demonstrates, beyond cavil, the existence of a constitutional violation. It does not discuss whether, based on his repeated disruptions and noncompliance with procedural rules of the Council, Monteiro would have been ejected from the meeting even if Perkins-Auguste had not harbored an intent to punish him for his views. Perhaps the majority’s reluctance to confront the issue stems from the District Court’s failure to instruct the jury on this point. Despite evidence that Perkins-Au-guste" }, { "docid": "7046422", "title": "", "text": "to the audience for ejecting him: “I am saddened by [the ejection], because I believe in free speech and I believe in representation.” She admitted at trial to having knowledge of a law memorandum of the City of Elizabeth Legal Department setting forth a procedure for ejecting unruly members. See supra note 2. The speed with which she determined to eject Mon-teiro from the meeting, her failure to consult her fellow council members or to negotiate any compromise, and her failure to follow any established procedure could be viewed by a reasonable jury as evidence that Perkins-Auguste’s behavior was emotionally charged and motivated by anger and personal animosity, rather than a desire to maintain smooth operation of the meeting. Despite the calm in the meeting room after the recess, Perkins-Auguste persisted in having Monteiro removed, in handcuffs, against his will. Perkins-Auguste’s argument that she could have conceivably (and constitutionally) ejected Monteiro on the basis of his disruptions is unavailing in the face of a jury verdict concluding that she acted with a motive to suppress Monteiro’s speech on the basis of viewpoint. Qualified immunity does not require a plaintiff to demonstrate that the official’s conduct was not reasonable under any conceivable set of circumstances. See Crawford-El v. Britton, 523 U.S. 574, 593-594, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (“[T]he policy concerns underlying Harlow do not support Justice Scalia’s unprecedented proposal to immunize all officials whose conduct is ‘objectively valid,’ regardless of improper intent.”); see also Locurto, 264 F.3d at 169-170. When a constitutional violation depends on evidence of improper intent, it is sufficient for the plaintiff to “identify affirmative evidence from which a jury could find ... the pertinent motive,” in order to survive summary judgment on that issue. Crawford-El, 523 U.S. at 600, 118 S.Ct. 1584. After the jury returns a verdict, judgment as a matter of law will be granted to the defendant only if that verdict is not based on sufficient evidence. Fed.R.Civ.P. 50(a)(1). In conclusion, the District Court did not err in denying Perkins-Auguste’s motion for judgment as a matter of law. In its opinion" }, { "docid": "7693881", "title": "", "text": "a public official’s state of mind, the Court observed that under Wood, prior to Harlow, allegations of defendant’s malicious intent to cause any injury at all to plaintiff — not just constitutional deprivations — “would have permitted an open-ended inquiry into [the official’s] subjective motivation.” Id. In contrast, the Court found that when assessing intent as an element of a constitutional violation, the motivation inquiry is not so broad as to allow discovery on any potential theoretical basis for the cause of defendant’s alleged animosity towards plaintiff: “rather, [the motivation inquiry] is more specific, such as an intent ... to deter public comment on a specific issue of public importance.” Id. The Court then observed that “existing law already prevents this more narrow element of unconstitutional motive [alleged as part of the underlying constitutional tort] from automatically carrying a plaintiff to trial.” Id. This is true because a defendant might prevail on a qualified immunity defense in a case alleging an intent-based constitutional tort, without need to inquire as to her motives, if (1) the relevant law was not clearly established, (2) the plaintiffs speech did not relate to a matter of public concern, or (3) the defendant showed that she would have reached the same decision even in the absence of the employee’s protected speech. Id. at 592-93, 118 S.Ct. 1584. In consequence, as noted by the Crawford-El Court, “unlike the subjective component of the immunity defense eliminated by Harloiv, the improper intent element of various causes of action should not ordinarily preclude summary disposition of insubstantial claims.” Id. at 593, 118 S.Ct. 1584. In Part TV of its opinion in Crawford-El, the Court recognized that even though a qualified immunity defense to an intent-based constitutional tort often can be resolved on grounds that avoid inquiries into the government official’s motives, that will not always be so. Therefore, the Court found it “appropriate to add a few words on some of the existing procedures available to federal trial judges in handling claims that involve examination of an official’s state of mind.” Id. at 597., 118 S.Ct. 1584 “First, the" }, { "docid": "7046423", "title": "", "text": "Monteiro’s speech on the basis of viewpoint. Qualified immunity does not require a plaintiff to demonstrate that the official’s conduct was not reasonable under any conceivable set of circumstances. See Crawford-El v. Britton, 523 U.S. 574, 593-594, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (“[T]he policy concerns underlying Harlow do not support Justice Scalia’s unprecedented proposal to immunize all officials whose conduct is ‘objectively valid,’ regardless of improper intent.”); see also Locurto, 264 F.3d at 169-170. When a constitutional violation depends on evidence of improper intent, it is sufficient for the plaintiff to “identify affirmative evidence from which a jury could find ... the pertinent motive,” in order to survive summary judgment on that issue. Crawford-El, 523 U.S. at 600, 118 S.Ct. 1584. After the jury returns a verdict, judgment as a matter of law will be granted to the defendant only if that verdict is not based on sufficient evidence. Fed.R.Civ.P. 50(a)(1). In conclusion, the District Court did not err in denying Perkins-Auguste’s motion for judgment as a matter of law. In its opinion denying the motion, the District Court noted that the jury found that the Defendant had an unconstitutional motivation for ejecting Plaintiff from the City Council meeting, thereby violating Plaintiffs rights under the First Amendment. Upon reviewing the evidence in the light most favorable to the Plaintiff, the District Court-found that sufficient evidence existed to support the jury verdict. We see no error by the District Court. IV. Perkins-Auguste also complains that the District Court committed substantial error in admitting evidence of Monteiro’s acquittal in municipal court of the disorderly persons charge and a memorandum of law from the City Law Department pertaining to the procedure to be followed in ejecting an unruly member of City Council. We review evidentiary rulings for abuse of discretion. Abrams v. Lightolier, 50 F.3d 1204, 1213 (3d Cir.1995). The District Court rejected these objections when it denied Perkins-Auguste’s motion for a new trial. The District Court admitted the evidence of Monteiro’s acquittal in the municipal court as evidence of damages because the bulk of Monteiro’s $10,000 damage award was a" }, { "docid": "11284665", "title": "", "text": "First Amendment right to be free from viewpoint discrimination in a limited public forum. See Chiu v. Plano Indep. Sch. Dist., 260 F.3d 330, 346 (5th Cir. 2001) (per curiam) (explaining that limited public forums “describe forums opened for public expression of particular kinds or by particular groups”). It is beyond debate that the law prohibits viewpoint discrimination in a limited public forum. See, e.g., Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001). The government can restrict or regulate speech in a limited public forum “as long as the regulation ‘(1) does not discriminate against speech on the basis of viewpoint and (2) is reasonable in light of the purpose served by the forum.’ ” Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 758 (5th Cir. 2010) (quoting Chiu, 260 F.3d at 346). Here, the district court denied summary judgment because a factual dispute exists as to whether Roberts’s conduct was viewpoint-based. Viewpoint discrimination exists “when the specific motivating ideology or the' opinion or perspective of the speaker is the rationale for the restriction.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); see also Pahls v. Thomas, 718 F.3d 1210, 1230 (10th Cir. 2013) (noting that “a claim of viewpoint discrimination in contravention of the First Amendment requires a plaintiff to show that the defendant acted with a viewpoint-discriminatory purpose”). If Heaney were to have violated a reasonable restriction, such as a topic or time constraint, there would be no constitutional violation. See Crawford-El v. Britton, 523 U.S. 574, 593, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998); Lowery v. Jefferson Cty. Bd. of Educ., 586 F.3d 427, 435 (6th Cir. 2009) (“No violation occurs when the same result would have occurred in the absence of any illegitimate motive.”). However, Heaney was speaking on an approved topic and within his allotted time. Because Heaney was not silenced for violating a reasonable restriction, the First Amendment claim turns on Roberts’s motive or intent in silencing and ejecting Heaney" }, { "docid": "7046436", "title": "", "text": "Mon-teiro. However, because the burden of proof on this issue lies with Perkins-Auguste, see Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568, and the record does not compel a finding in her favor, I will assume that the jury could have reasonably found — if given the opportunity — that the same actions would not have been taken in the absence of improper intent. This conclusion, considered with the findings that Monteiro engaged in protected speech and that Perkins-Auguste acted with retaliatory intent in suppressing his speech, demonstrates that a constitutional violation occurred. B. The second stage of the qualified immunity analysis is whether, given the existence of a constitutional violation, a reasonable person should have recognized it under “clearly established” law. The hypothetical “reasonable person” is an objective observer, who is aware of the facts known to the official but possesses an independent knowledge of governing legal precepts. See Harlow, 457 U.S. at 806, 102 S.Ct. 2727. Only when these rules clearly forbid the actions taken by the official will immunity be denied. Anderson v. Creighton, 488 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). 1. Subjective intent plays a limited role in this analysis. It is considered as an element of the underlying claim when the right at issue is predicated on the official’s motive, but the presence of improper motive does not preclude qualified immunity. Grant v. City of Pittsburgh, 98 F.3d 116, 124 (3d Cir.1996). An official who has committed a constitutional violation, even one evincing improper intent, will nevertheless be immune from liability if an objective observer in the same position, given the same facts and knowing of the official’s improper motive, would not have recognized a constitutional violation under clearly established law. Mihos, 358 F.3d at 105 (“[A] defendant might prevail ... in a case alleging an intent-based constitutional tort, without need to inquire as to her motives, if ... the relevant law was not clearly established ....”) (citing Crawfordr-El, 523 U.S. at 592-93, 118 S.Ct. 1584). The opinion of the majority holds to the contrary. It concludes that proof of" }, { "docid": "7046432", "title": "", "text": "S.Ct. 2510; Brennan, 350 F.3d at 412-13. So long as legislators comply with procedural rules and speak on topics within the scope of the meeting, they enjoy an absolute right to express their views without restraint and without fear of subsequent retaliation. A leader who prevents a member from speaking or punishes a member for prior speech based on his or her viewpoint has infringed on the member’s First Amendment rights. Parker, 646 F.2d at 853-54; see also Bond v. Floyd, 385 U.S. 116, 135-37, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966); Velez v. Levy, 401 F.3d 75, 97-98 (2d Cir. 2005); DeGrassi v. City of Glendora, 207 F.3d 636, 645-46 (9th Cir.2000); Miller v. Town of Hull, 878 F.2d 523, 532-33 (1st Cir.1989). But, even if retaliatory motive is established, the leader may yet escape liability by demonstrating that there is no causation between the improper intent and the restrictions on the legislator’s speech: i.e., that the legislator would have suffered the same restrictions in the absence of improper intent. Crawford-El v. Britton, 528 U.S. 574, 593, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (“[P]roof of an improper motive is not sufficient to establish a constitutional violation — there must also be evidence of causation.”). Proof that the same actions would have been taken regardless of the official’s intent cleaves the strand of causation between the constitutional violation and the harm, precluding success on the claim. See, e.g., Texas v. Lesage, 528 U.S. 18, 20-21, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999). No one would argue, for example, that an individual excluded from a public forum would have a basis for recovery if the decision to deny access was compelled by two independently operating regulations, one of which was viewpoint-biased and one of which was viewpoint-neutral. A restriction imposed as a result of improper intent will not give rise to liability if the same restriction would have been imposed otherwise. Mihos v. Swift, 358 F.3d 91, 105 (1st Cir.2004) (“[A] defendant might prevail ... in a case alleging an intent-based constitutional tort, without need to inquire as to her" }, { "docid": "7046431", "title": "", "text": "a violation is established must the court determine, as a legal matter, whether a reasonable person would have recognized that violation. Resolution of this question depends upon the court’s application of the facts of the case to “clearly established” law. E.g., Harvey v. Plains Twp. Police Dep't, 421 F.3d 185, 194 n. 12 (3d Cir.2005). A. The leader of a legislative meeting, like a public employer or owner of a limited public forum, is constitutionally entitled to impose limitations on the expressive rights of participants in order to facilitate the legitimate goals of the gathering. Parker v. Merlino, 646 F.2d 848, 854 (3d Cir.1981); see also Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828-30, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); Brennan v. Norton, 350 F.3d 399, 412-13 (3d Cir.2003). Speech may be limited on the basis of time, place, and manner — and even content; however, it may not be restricted on the basis of viewpoint. Parker, 646 F.2d at 853-54; see also Rosenberger, 515 U.S. at 828-30, 115 S.Ct. 2510; Brennan, 350 F.3d at 412-13. So long as legislators comply with procedural rules and speak on topics within the scope of the meeting, they enjoy an absolute right to express their views without restraint and without fear of subsequent retaliation. A leader who prevents a member from speaking or punishes a member for prior speech based on his or her viewpoint has infringed on the member’s First Amendment rights. Parker, 646 F.2d at 853-54; see also Bond v. Floyd, 385 U.S. 116, 135-37, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966); Velez v. Levy, 401 F.3d 75, 97-98 (2d Cir. 2005); DeGrassi v. City of Glendora, 207 F.3d 636, 645-46 (9th Cir.2000); Miller v. Town of Hull, 878 F.2d 523, 532-33 (1st Cir.1989). But, even if retaliatory motive is established, the leader may yet escape liability by demonstrating that there is no causation between the improper intent and the restrictions on the legislator’s speech: i.e., that the legislator would have suffered the same restrictions in the absence of improper intent. Crawford-El v. Britton, 528" }, { "docid": "3323153", "title": "", "text": "motion for a new trial and motion for judgment as a matter of law. IV. The Bank, together with Fuentes and Diaz in their official capacities, appeals from the jury verdict and also challenges the reinstatement of three of the plaintiffs (Santiago, Boneta, and Sauri). Fuentes and Diaz in their individual capacities appeal from the denial of qualified immunity. Before addressing defendants’ specific claims on appeal, we describe the Mt Healthy defense. A. The Mt Healthy Defense Although Mt. Healthy was a freedom of speech case, it is routinely applied to political discrimination cases of the Elrod/Branti/Rutan variety. Padilla-Garcia v. Guillermo Rodriguez, 212 F.3d 69, 74 (1st Cir.2000). In the aftermath of Mt Healthy, confusion still sometimes arises about the issue of causation. On top of several subsidiary layers of causation, there is an ultimate constitutional question of “but for” causation. See Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 417, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979) (referring to “but for” causation); Acevedo-Diaz v. Aponte, 1 F.3d 62, 66 (1st Cir.1993). As the Supreme Court clarified in Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998), [A]t least with certain types of claims, proof of an improper motive is not sufficient to establish a constitutional violation — there must also be evidence of causation. Accordingly, when a public employee shows that protected [conduct] was a “motivating factor” in an adverse employment decision, the employer still prevails by showing that it would have reached the same decision in the absence of the protected conduct. Id. at 593, 118 S.Ct. 1584 (emphasis added). Thus, even if a plaintiff meets his or her initial burden of showing that political affiliation was a motivating factor for an employment decision, that is insufficient to establish discrimination as a matter of law because the plaintiffs case at that point does not “distinguish^ ] between a result caused by a constitutional violation and one not so caused.” Mt. Healthy, 429 U.S. at 286, 97 S.Ct. 568. As the Supreme Court noted, to adopt a view of causation that focuses solely" }, { "docid": "7693899", "title": "", "text": "proceedings, and simple chronology compels the conclusion that Mihos was not referring to Levy II: the complaint was filed almost three months before Levy II was decided. We need not decide whether this reference is sufficient to expressly incorporate Levy I into the record. The findings in Levy I are not germane to the issues on appeal, and neither party relies on Levy I for their legal arguments in the briefs. . We need not address at this juncture the exact contours of the proper use of Levy I and Levy II in the proceedings on remand. Beyond Swift's attempted reliance on the motivation issue, neither party seeks to bring other findings in the Levy litigation into the record. . In making this observation, we express no opinion regarding the preclusive effect, if any, that Levy II might have on remand in evaluating the legitimacy of these concerns or Swift’s ability to demonstrate them on the record. . Although in many areas of the law there are important distinctions between \"intent” and \"motive,” we use them here interchangeably because the Supreme Court does so in its qualified immunity jurisprudence. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) and Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). . The Supreme Court recently explained again that \"[t]he reason why retaliating against individuals for their speech offends the Constitution is that it threatens to inhibit exercise of the protected right. Retaliation is thus akin to an 'unconstitutional condition’ demanded for the receipt of a government-provided benefit.” Crawford-El v. Britton, 523 U.S. 574, 589 n. 10, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (citations omitted). . Of course, if the constitutional tort itself does not include a subjective element such as intent, it would be an error to import such an element into the qualified immunity assessment of whether the plaintiffs allegations, if true, establish a constitutional violation. . Fed.R.Civ.P. 7(a) allows a court to “order a reply to an answer....” Fed.R.Civ.P. 12(e) provides that \"[i]f a pleading to which a" } ]

[ { "docid": "3692163", "title": "", "text": "the office had been open as required by F.R.Civ. P. rule 77(c), 28 U.S.C.A. His affidavits further assert that if, contrary to the best recollection of the clerk who mailed it, the notice was sent by regular mail rather than by air mail, then the notice of appeal would have been received during business hours on Saturday, January 4. Appellant contends that Rule 77 (c) required the Gainesville office to be open on Saturday mornings, which were regular business hours in that community; and that appellant’s counsel had a right to assume that the clerk was complying with this requirement. Accepting these uncontroverted facts as true, we conclude that appellant is entitled to the presumption that his notice of appeal was placed in the post office box of the clerk of the district court within the required time, notwithstanding the failure of the clerk or his deputy manually to take possession of and mark the notice “filed” until Monday, January 6, 1958. Being in the custody of the clerk, it met the requirement that it be “actually” received in the clerk’s office within the thirty-day period. In so ruling we do not depart from the well-established principle that the jurisdictional requirement that notice be filed within thirty days is not met by deposit of notice in the mail in time for it to reach the clerk’s office in the usual course of mail delivery within the time allowed. The distinction here is that the failure to mark the notice “filed” can be attributed to the absence of the clerk, whereas in the usual case, such failure is taken to indicate that it was not actually in the custody of the clerk. Nor do we pass upon the correctness of the rule applied in Casalduc v. Diaz, 1 Cir., 117 F.2d 915, cited by appellee. In that ease the appellant’s counsel swore that he had slipped a notice of appeal under the clerk’s door after business hours. The court held that the notice had not been placed in the actual custody of the clerk by this action and therefore it had" } ]

[ { "docid": "10916270", "title": "", "text": "of impeaching the trial testimony of a witness for the government. The Court allowed the petitioner to proceed in forma pauperis, but without a hearing, denied the motion for a hearing on August 22, 1962. 8. On October 13, 1962, the defendant filed with the Court a notice of appeal, an affidavit for an order to proceed in forma pauperis, and an affidavit in support of appeal. CONCLUSIONS OF LAW 1. Defendant who was then incarcerated on October 13, 1961, in the Wake County, North Carolina jail, sent, by the hand of the United States Deputy Marshall a letter containing a notice of intention to appeal, said letter delivered to the Clerk of the United States District Court, who received it at 4 o’clock P.M. and mailed it the same date to the presiding Judge. The Judgment and Commitment having been signed on October 4, 1961, said letter was sent in sufficient time (9 days later) to comply with the time requirement of Rule 37(a) (2) of the Federal Rules of Criminal Procedure, 18 U.S.C., Boykin v. Huff, 73 App.D.C. 378, 121 F.2d 865 (1941), Oddo v. United States, 171 F.2d 854 (2 Cir., 1949), Wallace v. United States, 174 F.2d 112 (8 Cir., 1949), and United States v. Dunbar, 212 F.2d 654 (2 Cir., 1954). 2. Defendant’s intent to file an appeal was reiterated in a letter addressed to the Court on October 30, 1961, when he requested the Court to furnish him copies of the forged documents in question. 3. The failure to pay the $5.00 filing fee and the giving of the appeal bond does not invalidate the notice, although the defendant did not request permission to proceed in forma pauperis until October 13, 1962, a year later, to the day. 4. The notice of appeal is deemed filed as of October 13, 1961, at 4 o’clock P.M. when defendant’s letter was handed to the Clerk. United States v. Quartello, 16 F.R.D. 421 (D.C.N.Y., 1954). It is therefore ORDERED that the defendant, upon good cause shown, be, and he is hereby allowed to prosecute his appeal in" }, { "docid": "6513971", "title": "", "text": "Thursday, January 25, 1962. If the last day for filing had been a Saturday and the Clerk’s office was closed that day, and if the Clerk had a post office mail box in which the notice of appeal was found on the following Monday, then Fallen might have been entitled to the benefit of a presumption that the notice of ' appeal was, on the last day for filing, in the box and in the custody of the Clerk so as to meet the requirement. Reynolds v. United States, 5th Cir. 1961, 288 F.2d 78, cert. den. 368 U.S. 883, 82 S.Ct. 127, 7 L.Ed.2d 83; Ward v. Atlantic Coast Line Railroad Co., 5th Cir. 1959, 265 F.2d 75, rev. on other grounds, 362 U.S. 396, 80 S.Ct. 789, 4 L.Ed.2d 820. But, here the Saturday on which it might be presumed the notice of appeal was in the Clerk’s post office box was not the last day for filing but two days later. The most favorable inference that could be drawn or presumption indulged would be that, on the last day for filing, the notice of appeal was somewhere in the possession of the Post Office Department. Although a more liberal rule may elsewhere prevail, this Court is committed to the principle that the jurisdictional requirement of timely filing of a notice of appeal is not met by the deposit of notice in the mail in time for it to reach the Clerk’s office in the usual course of mail delivery within the time allowed. Ward v. Atlantic Coast Line Railroad Company, supra; Lejeune v. Midwestern Insurance Co. of Oklahoma City, 5th Cir., 1952, 197 F.2d 149; Poyner v. Commissioner of Internal Revenue, 5th Cir. 1936, 81 F.2d 521. Although these decisions were applying the Rules of Civil Procedure, there is no basis for a distinction that would make them inapplicable to a ease under the Rules of Criminal Procedure. Fallen does not raise any constitutional questions so we are not required to consider whether Courts of Appeal may, as the Supreme Court does, take jurisdiction of a belated" }, { "docid": "6513970", "title": "", "text": "to put it in course of mailing nor does he say when he attempted to do so. Although we think it is wholly immaterial, there is nothing before us to indicate that the authorities at the Atlanta Penitentiary departed from the customary routine of promptly dispatching uncensored and unread, prisoners’ mail addressed to a court or court official. It may be that the removal of Fallen from Jacksonville, where he was tried, to the Atlanta prison on the day following that on which he was sentenced may, to some extent, have delayed the preparation of his notice of appeal, but it does not appear that this prevented a notice of appeal from being filed within the time permitted by the rule. We do not know that any basis exists for an objection to the removal, without delay, of a convicted prisoner to a place of confinement, or that any enlargement of the time for taking an appeal follows from such removal. The last day permitted by the Rule for filing the notice of appeal was Thursday, January 25, 1962. If the last day for filing had been a Saturday and the Clerk’s office was closed that day, and if the Clerk had a post office mail box in which the notice of appeal was found on the following Monday, then Fallen might have been entitled to the benefit of a presumption that the notice of ' appeal was, on the last day for filing, in the box and in the custody of the Clerk so as to meet the requirement. Reynolds v. United States, 5th Cir. 1961, 288 F.2d 78, cert. den. 368 U.S. 883, 82 S.Ct. 127, 7 L.Ed.2d 83; Ward v. Atlantic Coast Line Railroad Co., 5th Cir. 1959, 265 F.2d 75, rev. on other grounds, 362 U.S. 396, 80 S.Ct. 789, 4 L.Ed.2d 820. But, here the Saturday on which it might be presumed the notice of appeal was in the Clerk’s post office box was not the last day for filing but two days later. The most favorable inference that could be drawn or presumption indulged" }, { "docid": "21886781", "title": "", "text": "the Court’s order compelling discovery pursuant to Rule 37(b) of the Federal Rules of Civil Procedure.” See Record at 191. On December 18,1979, appellee so moved; specifically, it sought to dismiss the complaint and to require appellant to pay the expenses occasioned by his disobedience. Appellant answered the motion on January 16, 1980, and finally provided appellee with the executed power of attorney on January 25, 1980. By order dated February 6, 1980, however, the district court granted appel-lee’s motion, thereby dismissing appellant’s complaint with prejudice. Appellant filed, on February 15, 1980, a motion for relief under Fed.R.Civ.P. 60, which was denied on March 12, 1980. On April 11, 1980 appellant noticed an appeal purporting to embrace both the February 6 final order of dismissal and the March 12 denial of post-judgment relief. II. Appellate Jurisdiction The Federal Rules of Appellate Procedure provide: In a civil case ... in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required . . . shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from .... Fed.R.App.P. 4(a)(1), 28 U.S.C.A. (Cum. Supp.1980). This rule amplifies the parallel statutory requirement found in 28 U.S.C. § 2107 (1976) and has been held consistently to be both mandatory and jurisdictional, Browder v. Director, Dep’t of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 560-61, 54 L.Ed.2d 521 (1978); Gulf-Tampa Drydock Co. v. Vessel Virginia Trader, 435 F.2d 150, 151 (5th Cir. 1970); Lamb v. Shasta Oil Co., 149 F.2d 729, 730 (5th Cir. 1945). Cf. United States v. Robinson, 361 U.S. 220, 228-29, 80 S.Ct. 282, 287-88, 4 L.Ed.2d 259 (1960). As such, the thirty-day period cannot “be extended regardless of excuse,” id. at 229, 80 S.Ct. at 288 (footnote omitted). Accordingly, we are without jurisdiction to review the district court’s February 6, 1980 dismissal since appeal was noticed therefrom on April 11, 1980. In this case, however, appellant has perfected a timely appeal from" }, { "docid": "10068238", "title": "", "text": "and under Rule 26(a), FRAP, Monday, July 19, 1983, was the last day under Rule 4(a), FRAP, for the filing of a notice of appeal. The motion to proceed in forma pauperis was filed by the clerk’s office Monday, July 19, 1982. The affidavit to support the motion to proceed in forma pauperis as required by Rule 24(a), Fed.R.App.P., was executed and filed July 22, 1982. The motion to proceed in forma pauperis was initially denied August 2, 1982, but referred to a magistrate. A hearing was held by the magistrate on September 8 and on September 14 a recommendation was filed that leave to appeal in forma pauperis be granted. An order was entered September 29, 1982, granting defendant’s motion for leave to appeal in forma pauperis. The notice of appeal mailed to the court July 14,1982 was filed by the clerk on November 15, 1982. Two circuits have held that a motion to proceed in forma pauperis constitutes a notice of appeal pursuant to Rule 4(b). McDaniel v. Harris, 639 F.2d 1386,1388 n. 1 (5th Cir.1981); Kiger v. United States, 417 F.2d 1194, 1195 (7th Cir.1969), cert, denied, 397 U.S. 1066, 90 S.Ct. 1506, 25 L.Ed.2d 688 (1970). A notice of appeal is timely filed if it is received by the district court within the applicable time period. Aldabe v. Aldabe, 616 F.2d 1089, 1091 (9th Cir.1980). We conclude that this court properly has jurisdiction over this case. Gleason earned $17,713.35 in 1976, $23,-993.14 in 1977, and $19,989.30 in 1978 from his employment as a welder. As he was married he was required to file an income tax return for 1976 if he earned $3,600 and in 1977 and 1978 if he earned $4,700. Gleason filed no tax returns for the years 1976, 1977 and 1978. When asked by IRS Agent Thomas why he had not filed the returns, Gleason told him that he had no income in 1976 and although he worked parttime in 1977 and 1978, he did not make enough to file. He further stated that he was living off his wife’s ineome and she" }, { "docid": "11887233", "title": "", "text": "admitted against her in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). I. Jurisdiction Before we reach the substantive issues in this case, we must dispose of a jurisdictional problem presented only by Clifford Miller’s appeal. His notice of appeal was stamped February 17, 1981, a date past the Rule 4(b) deadline mandated by the Federal Rules of Appellate Procedure. Normally, this would preclude our jurisdiction, but appellant claims that he filed his notice on February 12, which was timely under the rule. The mistake occurred, according to appellant’s affidavit from the Clerk of the District Court, El Paso Division, because the clerk failed to stamp the notice before she forwarded it to the Pecos Division. February 17 apparently is the date upon which Pecos officials received the notice. The government does not deny appellant’s explanation for the untimely stamp. The Supreme Court has held that the “Clerk’s receipt of the notice of appeal within the 30-day period” satisfies the filing requirements, for civil appeals, even if the notice is not actually “stamped” or “filed” until after the deadline. J. Parissi v. Telechron, Inc., 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867 (1955). We find this reasoning equally applicable to appeals under Rule 4(b). When appellant offers the district clerk’s uncontroverted affidavit that she received the notice before the deadline expired, and the government has riot demonstrated that notice was not received on that day, this court should not find that appellant’s notice of appeal is untimely. Da’Ville v. Wise, 470 F.2d 1364, 1365 (5th Cir.), cert. denied, 414 U.S. 818, 94 S.Ct. 40, 38 L.Ed.2d 50 (1973); Ward v. Atlantic Coast Line Railroad, 265 F.2d 75, 79-80 (5th Cir. 1959), rev’d on other grounds, 362 U.S. 396, 80 S.Ct. 789, 4 L.Ed.2d 820 (1960). We, there fore, conclude that this court may properly exercise jurisdiction. II. Background of Evidentiary Claim Finding it reasonable for officer Maxwell to move the Millers’ car off the road, this court held the pistol admissible since it was in plain view of the officer. Id." }, { "docid": "11148937", "title": "", "text": "“filed” on date received by district court); United States v. Grimes, 426 F.2d 706 (5th Cir. 1970) (notice of appeal notarized during the ten-day period but received afterward); Kiger v. United States, 417 F.2d 1194 (7th Cir. 1969), cert. denied, 397 U.S. 1066, 90 S.Ct. 1506, 25 L.Ed.2d 688 (1970) (timely petition in forma pauperis considered notice of appeal); United States v. Conversano, 412 F.2d 1143 (3d Cir.), cert. denied, 396 U.S. 905, 90 S.Ct. 219, 24 L.Ed.2d 181 (1969) (appearance bond executed within the ten-day period considered timely notice of appeal); see generally 9 Moore’s Federal Practice ¶ 204.19. A letter written by an indigent prisoner within the time for appeal informing the trial court of a desire to appeal may be regarded as sufficient to constitute the taking of an appeal . United States v. Duncan, 310 F.2d 367, 368 (7th Cir. 1962), cert. denied, 373 U.S. 938, 83 S.Ct. 1542, 10 L.Ed.2d 693 (1963) (citations omitted). In Duncan a letter dated February 19, purporting to be a notice of appeal from an order entered on February 12, was not received by the district court until February 26. Nevertheless, it was held to be jurisdictionally sufficient. In Fallen the defendant-appellant was sentenced on January 15. Immediately after sentencing he discussed an appeal with his attorney. The attorney refused to represent the defendant further, advising him to obtain new counsel promptly. In a letter dated January 23, the defendant wrote to the district court clerk regarding an appeal. The letter, bearing no postmark, arrived on January 29, beyond the expiration of the ten-day period for filing a notice of appeal under Rule 37(a)(2) of the Federal Rules of Criminal Procedure, now Rule 4(b) of the Federal Rules of Appellate Procedure. See Advisory Committee Notes, Fed.R.App.P. 4(b). If, as the defendant claimed, the letter had been mailed on January 23, it should have arrived within the ten-day period. The court found no basis in the record for doubting either the veracity of the date the defendant put on the letter or that the letter had been mailed on the twenty-third." }, { "docid": "9960892", "title": "", "text": "subject the accused to conviction of wilful attempt to evade or defeat the tax which under Section 145(b) was made a felony. The Court held that the section making criminal a wilful attempt to evade the tax dealt with a different crime than that which made criminal a wilful failure to pay. The Court said: \"The difference between the two offenses, it seems to us, is found in the affirmative action implied from the term ‘attempt’ as used in the felony subsection.” 317 U.S. at page 498, 63 S.Ct. at page 368. And further the Court said: “We think that in employing the terminology of attempt to embrace the gravest of offenses against the revenues, Congress intended some willful commission in addition to the willful omissions that make up the list of misdemeanors.” At page 499, 63 S.Ct. at page 368. Taking the view we do of this case, it is unnecessary for us to rule upon appellant’s contention that the alleged duplication of sentences constituted a denial of his right to due process of law under the Fifth Amendment or the government’s argument in support of the result we have reached that one may be convicted of separate offenses even though the charges arise from a single act or series of acts so long as each requires proof of a fact not essential to the other. Suffice it to say that Congress had the power to enact a statute making such acts separately criminal and that we believe that Congress so acted in this instance. Accordingly, the judgment of the trial court is Affirmed. . The notice of appeal was mailed in time to be deposited in the post office box of the District Court Clerk’s office on the tenth day. This day happened to be a Saturday and the office was closed. We think that this was sufficient to satisfy the requirements of the Rule since it placed the notice within the Clerk’s custody and control. See Ward v. Atlantic Coast Line Railroad Company, 5 Cir., 265 F.2d 75, 80, reversed on other grounds, 362 U.S. 396, 80" }, { "docid": "21179624", "title": "", "text": "of sentencing and that he did not see the warrant of arrest until June 2, 1961. This second motion was denied without a hearing on June 16, 1961. On June 30, 1961, defendant filed his motion for leave to appeal in forma pauperis together with his notice of appeal from the sentence and judgment and from the denial of his two § 2255 mo tions. The notice of appeal was filed June 30, 1961, nunc pro tunc as of June 23, 1961. We hold initially that we are without jurisdiction to hear an appeal from the judgment and sentence of the district court. The judgment was entered on May 1, 1961. Motion for leave to appeal in forma, pauperis was filed June 30, 1961, and notice of appeal was filed as of June 23, 1961. Both of these documents were filed well beyond the 10 day period allowed for filing notice of appeal. Rule 37(a) (2) F.R.Cr.P., following 18 U.S.C.A. We are therefore concerned with defendant’s contentions only as they may be grounds for relief under 28 U.S.C.A. § 2255. Defendant attacks the validity of the indictment. An indictment is not open to collateral attack under section 2255 unless it fails to charge an offense under any reasonable construction. United States v. Shelton, 7 Cir., 249 F.2d 871, 874 (1957). The indictment in question clearly charges an offense and is valid on its face. Although the phrase “caused to be transported,” as it appears in the indictment, does not appear in the third paragraph of 18 U.S.C.A. § 2314 under which the indictment was drawn, it is built into the definition of the crime by 18 U.S.C.A. § 2(b). Pereira v. United States, 5 Cir., 202 F.2d 830, 837 (1953), affirmed, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435. It is not necessary that section 2(b) be referred to in the indictment. Londos v. United States, 5 Cir., 240 F.2d 1, 7 (1957), cert. denied, 353 U. S. 949, 77 S.Ct. 860, 1 L.Ed.2d 858. Defendant complains that he neither received nor had read to him a copy of" }, { "docid": "10068237", "title": "", "text": "PER CURIAM. Robert A. Gleason was convicted of willfully failing to file income tax returns for the years 1976,1977 and 1978 in violation of 26 U.S.C. § 7203. On appeal Gleason argues (1) that his cross-examination of the special agent with respect to the meaning of the tax laws was unduly restricted; (2) that the district court erred in refusing to allow court opinions introduced into evidence to be shown to the jury, and in refusing his counsel the right to use enlarged portions of the opinions in final argument; and (3) that the verdict is contrary to the evidence. We affirm. This court requested both parties to brief the issue of its jurisdiction. The government has done so, although Gleason has not. Appellant was sentenced July 7, 1982 and the order was entered that day. A notice of appeal and a motion to proceed in forma pauperis was mailed to the district court with a cover letter dated July 14, 1982. The tenth day after the entry of judgment was Saturday, July 17, 1983, and under Rule 26(a), FRAP, Monday, July 19, 1983, was the last day under Rule 4(a), FRAP, for the filing of a notice of appeal. The motion to proceed in forma pauperis was filed by the clerk’s office Monday, July 19, 1982. The affidavit to support the motion to proceed in forma pauperis as required by Rule 24(a), Fed.R.App.P., was executed and filed July 22, 1982. The motion to proceed in forma pauperis was initially denied August 2, 1982, but referred to a magistrate. A hearing was held by the magistrate on September 8 and on September 14 a recommendation was filed that leave to appeal in forma pauperis be granted. An order was entered September 29, 1982, granting defendant’s motion for leave to appeal in forma pauperis. The notice of appeal mailed to the court July 14,1982 was filed by the clerk on November 15, 1982. Two circuits have held that a motion to proceed in forma pauperis constitutes a notice of appeal pursuant to Rule 4(b). McDaniel v. Harris, 639 F.2d 1386,1388 n." }, { "docid": "9960893", "title": "", "text": "law under the Fifth Amendment or the government’s argument in support of the result we have reached that one may be convicted of separate offenses even though the charges arise from a single act or series of acts so long as each requires proof of a fact not essential to the other. Suffice it to say that Congress had the power to enact a statute making such acts separately criminal and that we believe that Congress so acted in this instance. Accordingly, the judgment of the trial court is Affirmed. . The notice of appeal was mailed in time to be deposited in the post office box of the District Court Clerk’s office on the tenth day. This day happened to be a Saturday and the office was closed. We think that this was sufficient to satisfy the requirements of the Rule since it placed the notice within the Clerk’s custody and control. See Ward v. Atlantic Coast Line Railroad Company, 5 Cir., 265 F.2d 75, 80, reversed on other grounds, 362 U.S. 396, 80 S.Ct. 789, 4 L.Ed.2d 820, the case was decided by this Court under Rule 73, F.R.Civ.P., 28 U.S.C.A., the civil counterpart of Rule 37(a) (2), F.R.Cr.P." }, { "docid": "720019", "title": "", "text": "PER CURIAM. Appellant has filed a motion for appointment of counsel under the Criminal Justice Act of 1964, 18 U.S.C. § 3006A, to represent him on his appeal in this case. The record shows that appellant was found guilty of the unlawful possession and purchase of heroin in violation of 21 U.S.C. § 174 and 26 U.S.C. § 4704(a). On September 10, 1965, he was sentenced to imprisonment for a period of seven years. No notice of appeal was filed within the time prescribed by Rule 37 (a) of the Federal Rules of Criminal Procedure. Under date of December 9, 1966, appellant filed in the district court a motion for leave to appeal in forma pauperis, averring that appellant instructed his privately retained attorney to file a notice of appeal, but the attorney failed to do so; and that because of severe illness appellant had been hospitalized in prison hospitals almost continuously since the imposition of his sentence. The district court entered an order on December 9, 1966, granting leave to appeal in forma pauperis. The notice of appeal was filed on the same day, fifteen months after the imposition of sentence. The filing of a notice of appeal as required by Rule 37(a), Federal Rules of Criminal Procedure, is mandatory and jurisdictional. Hill v. United States, 268 F.2d 203, 205 (C.A.6), cert, denied, 361 U.S. 854, 80 S.Ct. 110, 4 L.Ed.2d 93. The filing of a notice of appeal after the expiration of the time prescribed in Rule 37(a) (2) does not confer jurisdiction upon this court. The district court is not empowered to extend the time for filing the notice except as authorized by Rule 37(a), even though the late filing was the result of “excusable neglect.” United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259. The motion for appointment of counsel under the Criminal Justice Act is overruled. The appeal is dismissed." }, { "docid": "6513984", "title": "", "text": "in forma pauperis and to receive a copy of the transcript of record.” In view of Fallen’s affidavit offered by his court-appointed counsel on this hearing, and of the failure of the Government to offer any contrary evidence, I would agree with Judge Simpson that on January 23, eight days after sentence, Fallen signed the two letters and turned them over to the prison authorities for mailing. At that time, clearly, he attempted to appeal. If the Government had not, on the day after he was sentenced, moved him from the place of trial to the federal penitentiary in Atlanta, his attempted appeal would have been filed within 10 days after entry of the judgment of conviction. Further, if the prison authorities had promptly mailed Fallen’s letters, then, in due course of mail they would have reached the Clerk’s Office before the expiration of the 10th day. The circumstances of this case are almost as strong as those in Reynolds v. United States, 5 Cir., 1961, 288 F.2d 78, in which we found that the notice of appeal mailed in time to be deposited in the post office box of the Clerk’s Office on the tenth day, which happened to be Saturday on which the office was closed, would be treated as filed within the time allowed by Rule 37(a) (2), Federal Rules of Criminal Procedure. There is a further circumstance peculiar to this case, which persuades me that the doctrine of Reynolds v. United States, supra, should be extended so as to hold that the notice of appeal should be treated as timely filed. That circumstance centers about the mandatory duty of the district court under Rule 37(a) (2) that, “When a court after trial imposes sentence upon a defendant not rep resented by counsel, the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant.” That provision was invoked but held inapplicable under the facts in Jackson v. United States, 4 Cir., 1956, 231 F.2d 653. I think" }, { "docid": "23018229", "title": "", "text": "to his son. The District Court treated the case as an action filed under 42 U.S.C. § 1988 and permitted Poole to proceed in forma pauperis. The District Court then dismissed the claims against two defendants sua sponte for lack of personal jurisdiction, and the Court dismissed the claims against the remaining defendants as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)-1915A(b)(l). II. A. Before reaching the merits of this appeal, we are required to consider whether we have appellate jurisdiction. Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). The timeliness of an appeal is a mandatory jurisdictional prerequisite. United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960). In a civil case, Rule 4(a)(1) of the Federal Rules of Appellate Procedure generally requires a notice of appeal to be “filed with the district clerk within 30 days after the judgment or order appealed from is entered.” In this case, the order dismissing Poole’s complaint was entered on March 26, 2002, and Poole deposited his notice of appeal in his prison’s internal mail system 44 days later. Under Appellate Rule 4(c)(1), Poole’s notice of appeal is regarded as having been filed upon mailing, but because he did not mail the notice of appeal within 30 days after the relevant order was entered, he did not comply with Rule 4(a)(1). B. Poole argues that his notice of appeal should be regarded as having been filed on time because there was a delay in his receipt of notice from the district court clerk’s office regarding the entry of the order of dismissal. This delay resulted from Poole’s transfer from one correctional institution to another shortly before the order of dismissal was entered. When Poole made his initial filing and until some time in late March 2002, he was incarcerated in the Delaware Correctional Center in Smyrna, Delaware. 'When the District Court entered the order dismissing Poole’s claims, the clerk of the court apparently sent notice to Poole and all of the other parties on that same day. The notice" }, { "docid": "6246224", "title": "", "text": "dismissed by reason of failure to file timely notice of appeal in conformity with Rule 4(b), FRAP. Such notice was served on defendant and response thereto was filed. We hold that the notice of appeal from conviction was not timely filed and that the appeal should be dismissed for want of jurisdiction. “The courts have uniformly held that the taking of an appeal within the prescribed time is mandatory and jurisdictional.” United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed. 2d 259 (1960); see Temple v. United States, 386 U.S. 961, 87 S.Ct. 1024, 18 L.Ed.2d 110 (1967); Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964); United States v. Wade, 467 F.2d 1226, 1228 (8th Cir. 1972). The time for taking a criminal appeal is governed by Rule 4(b) of the Federal Rules of Appellate Procedure which provides in pertinent part: In a criminal case the notice of appeal by a defendant shall be filed in the district court within 10 days after the entry of the judgment or order appealed from. *X- -X- * *X> -X- -X- If a timely motion in arrest of judgment or for a new trial * * * has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of an order denying the motion. * * * * -x- * A judgment or order is entered within the meaning of this subdivision when it is entered in the criminal docket. Upon a showing of excusable neglect the district court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. It readily appears from the reading of the rule that after the expi ration of forty days from the entry of a final judgment there is nothing either the trial court or the court of appeals can do to extend the time for" }, { "docid": "15410487", "title": "", "text": "United States, 94 U.S.App.D.C. 393, 219 F.2d 499 (1954), cert. denied 358 U.S. 848, 79 S.Ct. 74, 3 L.Ed.2d 82 (1958). . Advisory Committee’s Note to F.R.Crim.P. 37(a) (2) ¶ 5. . See Coppedge v. United States, 369 U.S. 438, 441-442, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). . F.R.Crim.P. 32(a) (2). . Ibid. . Unless the right is intelligently and effectively waived, the defendant must be represented by counsel when sentence is imposed. Mempa v. Rhay, 389 U.S. 128, 129, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Daniel v. United States, 107 U.S.App.D.C. 110, 112, 274 F.2d 768, 770 (1960), cert. denied 366 U.S. 970, 81 S.Ct. 1935, 6 L.Ed.2d 1260 (1961); Gadsden v. United States, 96 U.S.App.D.C. 162, 165, 223 F.2d 627, 630 (1955); McKinney v. United States, 93 U.S.App.D.C. 222, 225, 208 F.2d 844, 847 (1953). And see 18 U.S.C. § 3006A(c); F.R.Crim.P. 44(a). . See, e. g., Fulwood v. Clemmer, 111 U.S.App.D.C. 184, 186 n. 5, 295 F.2d 171, 173 n. 5 (1961); Smith v. United States, 106 U.S.App.D.C. 169, 170, 270 F.2d 921, 922 (en banc 1959). See also United States v. Morgan, 346 U.S. 502, 505, 74 S.Ct. 247, 98 L.Ed. 248 (1954); Darr v. Burford, 339 U.S. 200, 203-204, 70 S.Ct. 587, 94 L.Ed. 761 (1950); Roberts v. Pegelow, 313 F.2d 548, 550 (4th Cir. 1963). . By our estimate, the incidental burden on the District Court, on the infrequent occasion when situations of this, type arise, should not be undue. Our own experience with appeals m forma pauperis indicates convincingly that it will not be. Our rules require an application for leave to appeal in forma pauperis to be presented within 30 days after denial of a similar request in the District Court. D.C.Cir.R. 41(b). When an untimely application is received, it is the practice of the clerk of this court to hold the application in abeyance pending clarification of the reason for the tardiness. The clerk writes a letter to the petitioner, noting the relevant dates and informing him that if he desires permission to file late, he must explain why" }, { "docid": "23214086", "title": "", "text": "the latter date Oddo wrote a letter to the clerk enclosing the notice of appeal and stating that the filing fee was being forwarded through official prison channels. It would seem pointless to require notification by the clerk of the court unless the party for whose benefit the provision exists is entitled to rely on receipt of the -notice. We believe that, under the circumstances of the appellant’s imprisonment, the ten day period mentioned in Rule ■37(a) (2) did not start to run until receipt of the notice required by Rule 49(c). Such appears to be the view of the Sixth Circuit in Remine v. United States, 161 F.2d 1020, certiorari denied 331 U.S. 862, 67 S.Ct. 1759, 91 L.Ed. 1868. Additional support for this view may be found in the court’s discussion in Hill v. Hawes, 320 U.S. 520, 523, 64 S.Ct. 334, 88 L.Ed. 283, 149 A.L.R. 736, of Rule 77(d) of the Federal Rules of Civil Procedure, 28 U.S.C.A., which is substantially the counterpart of Rule 49(c) of the Rules of Criminal Procedure. See also Boykin v. Huff, 73 App. D.C. 378, 121 F.2d 865, 873, where a letter addressed to the trial judge was held a sufficient compliance with Rule 37(a). The fact that the notice of appeal was unaccompanied by the filing fee does not in our opinion impair its validity. It is true that we do not find in the Criminal Rules the equivalent of Civil Rule 73 (a) which provides that the failure of the appellant to take further steps after filing notice of appeal does not affect the validity of the appeal; it is likewise true that Smith v. Johnston, 9 Cir., 109 F.2d 152, 154 contains a dictum that the clerk of the district court is justified in refusing to file the notice of appeal until his fee has been paid or an order made permitting the appellant to proceed in forma pauperis. But however that may be in a civil appeal, when an indigent appellant is incarcerated and is required to comply with the prison routine in transmitting the filing" }, { "docid": "23461593", "title": "", "text": "4(a), which is “mandatory and jurisdictional,” United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); Federal Deposit Ins. Corp. v. Congregation Poiley Tzedeck, 159 F.2d 163, 165-66 (2d Cir. 1946). Were appellants pro se litigants we might be inclined toward a liberal interpretation of their unsuccessful filing efforts, see Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), in view of the pro se litigant’s unfamiliarity with procedural requirements. See, e. g., Alley v. Dodge Hotel, supra. However, appellants were represented by experienced legal counsel, whose duty it was to protect his clients by seeing that the important filing deadline would be met. That deadline is not satisfied by service of a notice of appeal upon other parties, Federal Deposit Ins. Corp. v. Congregation Poiley Tzedeck, 159 F.2d 163, 166 (2d Cir. 1946), nor is the deadline extended by the untimely filing of a motion to amend or alter the judgment, 9 Moore’s Federal Practice ¶ 204.12[2], p. 955 (1973 ed.), i. e., after the 10-day period prescribed by Rule 59(e), F.R.Civ.P., for filing such a motion, which cannot be enlarged, see Rule 6(b), F.R.Civ.P.; Spurgeon v. Delta Steamship Lines, Inc., 387 F.2d 358 (2d Cir. 1967); 9 Moore’s Federal Practice ¶ 204.12[1], pp. 951-52 (1973 ed.). Appellants’ plea for an extension of time nunc pro tunc to December 19 is addressed to the wrong forum. Rule 4(a) authorizes the district court, not the court of appeals, upon a showing of excusable neglect, to grant an extension of not more than 30 additional days beyond the expiration of the original 30-day period for filing. Rule 26(b), F.R.A.P., furthermore, provides that a court of appeals “may not enlarge the time for filing a notice of appeal”. See Alabama Labor Council, AFL-CIO P. E. U. Loc. No. 1279 v. Alabama, 453 F.2d 922, 925 (5th Cir. 1972); 9 Moore’s Federal Practice ¶ 226.02 [2] (1973 ed.). Appellees contend that it is now too late for appellants to obtain such an extension of time from the district court, since they failed to move" }, { "docid": "23323314", "title": "", "text": "the filing fee. In this letter the Clerk advised the appellant “that the notice of appeal must be filed within thirty days of the date of the order appealed from.” At the time the order of dismissal was entered, Rule 37(a) (2) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., required that an appeal in a criminal case be taken by a defendant “within 10 days after entry of the judgment or order appealed from.” Rule 37(a) (1) of the Criminal Rules provided that an appeal “is taken by filing with the clerk of the district court a notice of appeal in duplicate.” In Berkoff v. Humphrey, 8 Cir., 159 F.2d 5, 7, and in Byrd v. Pescor, 8 Cir., 163 F.2d 775, 779, this Court held that a motion to vacate an illegal sentence had become an ordinary remedy in criminal proceedings. See, also, Rule 35 of the Criminal Rules. The appellant had ten days to file his notice of appeal, United States v. Bloom, 2 Cir., 164 F.2d 556, 557; Ekberg v. United States, 1 Cir., 167 F.2d 380, 383; Carter v. United States, 10 Cir., 168 F.2d 310, 311. But, in view of his incarceration and his conceded efforts to take an immediate appeal as soon as he knew of the entry of the order of dismissal, we think this Court properly may assume jurisdiction and consider this case upon the merits. Compare, Boykin v. Huff, 73 App.D.C. 378, 121 F.2d 865, 873, 874, and Remine v. United States, 6 Cir., 161 F. 2d 1020, certiorari denied 331 U.S. 862, 67 S.Ct. 1759, 91 L.Ed. 1868; Oddo v. United States, 2 Cir., 171 F.2d 854. The record on appeal shows that on March 18, 1943, the appellant and Roy L. Story were, by an indictment, charged with the armed robbery on July 24, 1936, of the Farmers’ State Bank, of Turton, South Dakota, a federally insured bank, and with having thereafter become fugitives from justice. A similar indictment had been returned against them on November 12, 1942, but it contained no allegation that the defendants, after" }, { "docid": "18363899", "title": "", "text": "PER CURIAM. We granted leave to appeal in forma pauperis on the limited issue of the timeliness of the notice of appeal. The plaintiffs-prospective appellants were denied injunctive relief by the district court and judgment was entered on June 5, 1969. Timely post-trial motions were filed and denied on August 15, 1969, but apparently no notice of their denial was sent to the parties as is required by Rule 77(d), Federal Rules of Civil Procedure. Much later, on January 28, 1970, one of the attorneys visited the district court and received first knowledge that the post-trial motions had been denied. On February 27, 1970, the district court was requested, by motion, to withdraw the August order and re-enter it as of January 28, 1970, or later, alleging lack of notice. A notice of appeal was also filed on February 27, 1970. The district court denied the motion to withdraw and re-enter judgment. Rule 77(d), supra, also provides: “ * * * Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed * * We have held that Rule 77(d) “thus plainly charges the prospective appellant with the duty of following the progress of the action and advising himself when the court makes the order he wishes to protest.” Long v. Emery, 383 F.2d 392, 394 (10th Cir. 1967). Similarly, see Buckley v. United States, 382 F.2d 611 (10th Cir. 1967) , cert. denied, 390 U.S. 997, 88 S.Ct. 1202, 20 L.Ed.2d 97 (1968). A court of appeals acquires jurisdiction of an appeal from a district court decision only upon the filing of a timely notice of appeal. Durham v. United States, 400 F.2d 879 (10th Cir. 1968) , cert. denied, 394 U.S. 932, 89 S.Ct. 1204, 22 L.Ed.2d 462 (1969); Stone v. Wyoming Supreme Court, 236 F.2d 275 (10th Cir. 1956). This requirement is mandatory and jurisdictional. United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960). Appellants urge a contrary conclusion" } ]

[ { "docid": "21597927", "title": "", "text": "HARLINGTON WOOD, Jr., Circuit Judge. Plaintiff Thomas J. Lowrance brought this action against Stephen J. Hacker to collect monies allegedly owed by Hacker as a result of Hacker’s commodity trading activities. Hacker raised the affirmative defense of accord and satisfaction, claiming that agreement was reached between the parties discharging any remaining debts. The district court found that Hacker failed to establish the defense of accord and satisfaction and awarded the plaintiff $39,-309.30. Hacker appeals from that judgment. Plaintiff Lowrance, a resident of Illinois, originally filed this action in the Circuit Court of Cook County, Illinois. Defendant Hacker, a resident of Florida, timely removed the case to federal district court under 28 U.S.C. §§ 1441, 1446. Lowrance was a licensed commodities trading advisor, engaged in clearing trades for customers involving commodity futures contracts bought and sold on the various commodity exchanges. Hacker was a heavy trader in the commodity futures market. From June to September, 1984, Hacker utilized Lowrance’s services as a trading advisor. Lowrance brought this action as the assignee of Rosenthal & Co. (“Rosenthal”). Rosenthal was a commodities brokerage firm located in Chicago. Rosenthal acted as a clearinghouse for persons interested in trading commodity futures contracts. In February 1984, Hacker opened a customer account with Rosenthal. Hacker executed a limited power of attorney authorizing Lowrance to act as his agent in various trading transactions and Lowrance became Hacker’s commodities trading advisor with respect to his Rosen-thal account. Hacker agreed to indemnify any indebtedness arising from any trade or debit balance due thereon. All trading on Hacker’s behalf was done through Low-rance. During the period from June to September, 1984, Hacker actively traded in the futures markets. His trading was remarkably unsuccessful and during that time period, to cover losses and to meet margin requirements, Hacker deposited more than $500,000 into his Rosenthal account. Despite these deposits, Hacker’s account had a debit balance of $52,309.30 at the end of all trading. Most of these losses were accumulated through trading that took place on September 13. On September 12, Hacker’s account had a debit balance of approximately $17,000 and Hacker deposited" } ]

[ { "docid": "11792179", "title": "", "text": "the reasonable expectations of the parties. Schek v. Chicago Transit Auth., 42 Ill.2d 362, 247 N.E.2d 886 (1969); National Distillers & Chem. Corp. v. First Nat’l Bank of Highland Park, 804 F.2d 978, 982 (7th Cir.1986). We can conceive of no reason why Rosenthal would deny its employee Lowrance the right to have someone else reimburse him the attorneys’ fees he was forced to expend in the normal course of his collecting a debt due and owing. The purpose of the assignment from Rosenthal’s point of view was not to do Hacker any favors, but only to secure payment of the debit balance in Hacker’s account with the company. The purpose was to shift the burden of collection of Hacker’s debt from the company to Lowrance. There is nothing in the record to reflect that Rosenthal had any intent to release Hacker from his bargain to pay the reasonable costs of collection of the debt Lowrance paid on Hacker’s behalf pursuant to Lowrance’s contract of employment. The question to be faced, then, is whether Rosenthal’s and Lowrance’s intentions were adequately expressed in the Assignment. Judge Plunkett found that “all right, title and interest” meant all contract rights, including but not limited to the principal amount due Rosenthal. Hacker argues that the assignment should be read more closely. He argues (1) that the dollar amount stated as the value of the accounts limits the amount assigned; (2) that attorneys’ fees were neither a “claim” nor an “account,” and were therefore not assigned; (3) that no attorneys’ fees were “due” at the time of the assignment and were therefore not assigned; and (4) that all doubt about the meaning of the terms of the assignment document should be resolved against Lowrance. Each argument relies on a technical construction of the language of the assignment document without regard to the intent of the parties to it. We reject this approach to contract interpretation, and we affirm the judgment of the district court. The fact that the assignment document stated the dollar amount of the claim does not necessarily mean that the statement was" }, { "docid": "3131290", "title": "", "text": "900 F.2d 116, 117 (7th Cir.1990). This exception makes sense; where the lawyer is acting in his capacity as the. client’s representative, the question whether the motion for fees is in the name of the party or his attorney truly is a “technicality.” In such cases, it would “exalt[ ] form over substance” to deny the motion for fees “so that the ministerial function of substituting the plaintiff” for the attorney could be accomplished. Ceglia v. Schweiker, 566 F.Supp. 118, 120 n. 1 (E.D.N.Y.1983). By contrast, in the First and Second Circuit cases holding that the lawyer has no standing, the lawyer had been discharged by the client, so that he was not acting as the client’s representative. Under those circumstances, the difference between the attorney and the client is not a technicality but a reality. This case falls somewhere in the middle. First of all, Ellis claims that he is still acting as Lowrance’s attorney. The magistrate judge, however, concluded that the attorney-client relationship between Ellis and Lowrance had been severed sometime during the course of the garnishment proceedings. There is strong evidence in the record to support that conclusion. According to the magistrate judge, Ellis did not appear in that proceeding on Lowrance’s behalf after Hacker filed his motion, for set-off in May of 1989. As early as January of 1989, Lowrance filed pro se an “Affidavit of Thomas J. Lowrance in Support of Plaintiff’s Position to Deny Defendant’s Motion to Supplement Record on Pending Motions to Quash Garnishment.” In March of 1989, Lowrance sent a letter to Hacker’s attorney informing him that “Morris W. Ellis is not authorized, in the absence of my signed written expressed authorization to the contrary, Mr. Ellis is not authorized to settle or receive any payment of money in behalf of Thomas J. Lowrance relative to all matters” in Low-rance’s case against Hacker. And Low- ranee appealed the district court’s ruling of January 30, 1990, to this court pro se. On the other hand, there is no question that Ellis was acting on behalf of Lowrance in defending Lowrance’s judgments against Hacker’s" }, { "docid": "11792185", "title": "", "text": "Lowrance’s position to have been the drafter. But even if Lowrance were considered to have drafted the assignment, the interpretation-against-the-drafter rule is used only as a last resort when other accepted avenues of contract interpretation have failed. Lippo v. Mobil Oil Corp., 776 F.2d 706, 714 n. 15 (7th Cir.1985) (interpreting Illinois law). We refuse to utilize an unduly narrow construction of the terms of the assignment to defeat the intent of the parties to that instrument when those words gave fair warning to third parties of what they truly intended. We conclude that Hacker is liable to Lowrance for his reasonable costs incurred in obtaining reimbursement after fulfilling Hacker’s legal obligation to Rosenthal & Co. We turn now to Hacker’s argument concerning the amount of those costs. Hacker argues that fees paid by Low-rance’ s principal attorney to attorney Thomas Kolter for research into Hacker’s degree of sophistication in the futures markets and to attorney Eric Ludwig for investigation of Hacker’s financial condition were not reasonable costs of collection. The district court found that the research was relevant to countering Hacker’s defenses. Hacker had argued that his poverty was one of the factors supporting his position that a bona fide dispute existed which would validate his accord and satisfaction defense. The district court found that fees for research into Hacker’s financial condition by one of the investigators, Ludwig, were proper costs of enforcing collection, and were compensable. Because Hacker raised the issue of his financial condition as a part of his defense to Low-rance’s suit to enforce payment, the district court was not clearly in error in finding that costs of an independent investigation into Hacker’s financial condition were incurred to enforce collection. Similarly, Kolter’s research into Hacker’s degree of sophistication in the securities markets was found to be relevant to Hacker’s defense of churning. The churning issue was raised by Hacker, and the district court was not clearly in error when it found that fees paid in combatting that defense were paid to enforce collection of the underlying debt. The judgment of the district court is Affirmed." }, { "docid": "11792176", "title": "", "text": "an assignment of its claim against Hacker. The pertinent part of the assignment states that Rosenthal assigns to Lowrance “all of its right, title and interest in and to the following claims and accounts due it from: Stephen J. Hacker, Account No. 68906, $52,309.30. The total amount of said claims and accounts assigned hereby is $52,309.30.” The assignment document fails to recite a right to attorneys’ fees. At the time the assignment was made, Rosenthal had not incurred any attorneys’ fees. Lowrance contacted Hacker about the debt, and Hacker offered $13,000 in satisfaction of the full debt. Hacker sent Low-rance a check in that amount, with a notation, “Accord and satisfaction understood in our settlement agreement.” Lowrance deleted that notation and substituted his own, accepting the check as partial payment only, and stating the balance of $39,-309.30 remaining on the debt. He then cashed the check. When Hacker refused to pay the balance, Lowrance sued in the Circuit Court of Cook County, Illinois, and Hacker removed the action to the federal district court for the Northern District of Illinois. Federal jurisdiction is based on diversity of citizenship, and Illinois law governs the resolution of this dispute. Judge Plunkett ruled against Hacker on his defenses of accord and satisfaction and “churning,” and awarded Lowrance the $39,309.30, while reserving judgment on the issue of whether Hacker was liable for Lowrance's attorneys’ fees. This court affirmed that judgment, Lowrance v. Hacker, 866 F.2d 950 (7th Cir.1989). While that appeal was pending, Judge Plunkett ordered Hacker to pay Lowrance $8,273 in attorneys’ fees. Hacker filed a timely notice of appeal arguing that the assignment to Lowrance did not include an assignment of right to attorneys’ fees. In the alternative, Hacker argues that even if Lowrance is entitled to attorneys’ fees, he is still not entitled to the part of the award compensating Lowrance for paying lawyers hired by Lowrance’s principal attorney solely to help investigate Hacker’s affairs. STANDARD OF REVIEW Hacker’s challenge to the award of attorneys’ fees is based purely on interpretation of the assignment document. Assignments are to be interpreted in the" }, { "docid": "3131292", "title": "", "text": "appeals to this court. There was no suggestion that Lowrance objected to Ellis’ representation in those appeals. Had Ellis brought a motion for attorney’s fees for those appeals immediately following this court’s rulings in Lowrance’s favor, Ellis’ “contractual entitlement” to fees would have been uncóritested, and the improper denomination of the petition a mere technicality that the court would have overlooked. Indeed, Ellis claims that the original petition for fees in this case, which the district court granted, was brought in his own name, and Hacker does not dispute this. In our view, Ellis’ entitlement to fees for his services in protecting Lowrance’s judgment on appeal did not become “com tested” simply because he and Lowrance apparently came to a parting of the ways in the garnishment proceedings. Therefore, we conclude that Ellis has standing to petition for his reasonable fees for those services. Given the strong evidence of his estrangement from Lowrance during the garnishment proceedings, however, we find that he may not petition Hacker directly for fees incurred during those proceedings. Hacker also contends that, whether or not Ellis has standing to bring a claim for attorney’s fees, any claim for such fees is barred because it must be based on the contract between Hacker and Rosenthal which was merged in the judgments in favor of Lowrance. The Illinois Supreme Court has stated the doctrine of merger as follows: The general rule is, that by a judgment at law or a decree in chancery, the contract or instrument upon which the proceeding is based becomes entirely merged in the judgment. By the judgment of the court it loses all of its vitality and ceases to bind the parties to its execution.... Oncé becoming merged in the judgment, no further action at law or suit in equity can be maintained. Doerr v. Schmitt, 375 Ill. 470, 31 N.E.2d 971, 972 (1941). Illinois courts, however, have held that the merger rule does not apply to contractual clauses providing for payment of attorney’s fees. In Stein v. Spainhour, 196 Ill.App.3d 65, 142 Ill.Dec. 723, 553 N.E.2d 73, appeal dismissed, 133 Ill.2d" }, { "docid": "11792178", "title": "", "text": "same way as any other contract. See Advance Process Supply Co. v. Litton Ind. Credit Corp., 745 F.2d 1076 (7th Cir.1984). The interpretation of an unambiguous contract is a question of law. Pipe Fitters’ Welfare Fund v. Mosbeck Ind. Equip., Inc., 856 F.2d 837, 840 (7th Cir.1988). This court’s review is de novo. The challenge to the fees attributable to the investigating attorneys is a question of fact. The determination that those attorneys were employed “to enforce collection” involved facts outside the four corners of the commodity-trading agreement, and is therefore treated as a finding of fact. See J. Calamari & J. Perillo, Contracts, § 3-12, p. 124 (2d ed. 1977). Judge Plunkett ruled that the attorneys’ fees were a part of the attempt to enforce collection, and were therefore included in Hacker’s contract obligation. To prevail on this issue, Hacker must demonstrate that Judge Plunkett’s finding was clearly erroneous. Fed.R.Civ.P. 52(b). DISCUSSION This case calls for the application of principles of contract interpretation. The overriding goal of contract interpretation is to give effect to the reasonable expectations of the parties. Schek v. Chicago Transit Auth., 42 Ill.2d 362, 247 N.E.2d 886 (1969); National Distillers & Chem. Corp. v. First Nat’l Bank of Highland Park, 804 F.2d 978, 982 (7th Cir.1986). We can conceive of no reason why Rosenthal would deny its employee Lowrance the right to have someone else reimburse him the attorneys’ fees he was forced to expend in the normal course of his collecting a debt due and owing. The purpose of the assignment from Rosenthal’s point of view was not to do Hacker any favors, but only to secure payment of the debit balance in Hacker’s account with the company. The purpose was to shift the burden of collection of Hacker’s debt from the company to Lowrance. There is nothing in the record to reflect that Rosenthal had any intent to release Hacker from his bargain to pay the reasonable costs of collection of the debt Lowrance paid on Hacker’s behalf pursuant to Lowrance’s contract of employment. The question to be faced, then, is whether Rosenthal’s" }, { "docid": "3131283", "title": "", "text": "fees should an attorney be employed to enforce collection. From mid-June to mid-September of 1984, Thomas J. Lowrance acted as Hacker’s commodities trading adviser for Hacker’s account with Rosenthal. During that period, Hacker lost more than $500,000 in that account. At the time the account was closed, it had a debit balance of $52,309.30 for which Hacker was liable under the terms of the Agreement. Lowrance paid that balance pursuant to his relationship with Rosenthal, and Rosenthal then assigned to Lowrance all of its rights, title and interest in the account, including the right to collect the debit balance from Hacker. On February 12, 1985, Hacker paid Low-rance $13,000, which he claimed constituted an accord and satisfaction of the debt. Lowrance brought an action against Hacker to collect the balance. On July 31, 1987, after a three-day bench trial, the district court entered judgment for Lowrance in the amount of $39,309.30 plus interest. The court reserved judgment on the question whether Hacker’s contract with Rosen-thal required Hacker to pay Lowrance’s attorney’s fees. On October 8, 1987, the district court entered a written decision holding that Rosenthal’s assignment to Lowrance included the right to attorney’s fees, and awarding Lowrance $8,273 of the $12,343 in fees he requested. Judgment in conformity with that ruling was entered on June 14, 1988. Hacker prosecuted separate appeals from the judgment on the merits and the award of attorney’s fees, and this court affirmed both judgments. See Lowrance v. Hacker, 866 F.2d 950 (7th Cir.1989) (affirming judgment on the merits), and Lowrance v. Hacker, 888 F.2d 49 (7th Cir.1989) (affirming award of attorney’s fees). On October 28, 1987, Lowrance began garnishment proceedings against Stotler & Company (Stotler), a Chicago commodities brokerage firm which held funds allegedly belonging to Hacker. The garnishment affidavit served on Stotler referred only to the district court’s July 31, 1987 judgment, in which the issue of attorney’s fees had been reserved, and sought $39,309.30 in principal plus $12,116.20 in interest. Hacker challenged the validity of the garnishment on the ground that the funds in the account in question did not belong to" }, { "docid": "11792175", "title": "", "text": "COFFEY, Circuit Judge. Plaintiff-appellee Thomas Lowrance is a commodities broker employed by the firm of Rosenthal & Company (“Rosenthal”). Rosenthal’s policy is that brokers must make good any deficits in their customers’ accounts which the customer refuses to pay. Stephen Hacker was one of Low-rance’s customers under a commodity-trading agreement between Hacker and Rosen-thal which called for Hacker to pay “reasonable attorneys’ fees should an attorney be employed to enforce collection” of any deficits that might arise in his trading account. Hacker defaulted in his payments due to a number of ill-fated trades during the summer of 1984. In spite of the fact that Hacker contributed an additional $500,000 to his trading account to cover losses and margin calls during that period, a large debit balance remained, and Hacker refused to pay. Subsequently the account was liquidated to pay the debt, but Hacker still owed Rosenthal & Company $52,309.30 after the liquidation of his holdings. Pursuant to company policy, Rosenthal & Company collected the full amount from its employee Lowrance, and in return gave Lowrance an assignment of its claim against Hacker. The pertinent part of the assignment states that Rosenthal assigns to Lowrance “all of its right, title and interest in and to the following claims and accounts due it from: Stephen J. Hacker, Account No. 68906, $52,309.30. The total amount of said claims and accounts assigned hereby is $52,309.30.” The assignment document fails to recite a right to attorneys’ fees. At the time the assignment was made, Rosenthal had not incurred any attorneys’ fees. Lowrance contacted Hacker about the debt, and Hacker offered $13,000 in satisfaction of the full debt. Hacker sent Low-rance a check in that amount, with a notation, “Accord and satisfaction understood in our settlement agreement.” Lowrance deleted that notation and substituted his own, accepting the check as partial payment only, and stating the balance of $39,-309.30 remaining on the debt. He then cashed the check. When Hacker refused to pay the balance, Lowrance sued in the Circuit Court of Cook County, Illinois, and Hacker removed the action to the federal district court for the" }, { "docid": "3131287", "title": "", "text": "courts have consistently held that no enforceable lien is created under the statute until the attorney has served the required notice. McKee-Berger-Mansueto, Inc. v. Board of Education, 691 F.2d 828, 835 (7th Cir.1982). Ellis served notice of lien on Stotler and on Hacker’s attorney on February 7, 1990. By that time, however, the July 31, 1987 judgment, in favor of Lowrance had been extinguished by the set-off of judgments. Since Lowrance had sought garnishment of the Stotler funds to enforce that judgment only, there was no claim on those funds to which Ellis’ lien could attach. .Ellis attempts to avoid this conclusion by arguing that the set-off did not extinguish all of Lowrance’s interest in the garnished funds because attorney’s fees are exempt from set-off under section 12-178(5) of the Illinois Code of Civil Procedure, Ill.Rev. Stat. ch. 110. We find this argument unpersuasive. The only claim Lowrance made against the Stotler funds was for the amount of the judgment on the merits plus interest. That judgment clearly did not include an award of attorney’s fees — the district court explicitly reserved the issue of attorney’s fees for later proceedings. Although Lowrance could later have filed a garnishment affidavit against the Stotler funds based on the award of attorney’s fees, he did not do so. Rather, he filed a separate garnishment action against Pioneer American Savings Bank in Florida (Pioneer), seeking collection of the attorney’s fee award only. Thus, we think it clear that attorney’s fees were simply not involved in the Stotler garnishment proceedings, either as an “implicit” part of the judgment on the merits or as a separate award. There is no question of an “exemption” from the set-off here, because the attorney’s fees, which were awarded in supplementary proceedings, were never part of the set-off. See Adam Martin Construction Co. v. Brandon Partnership, 135 Ill.App.3d 324, 90 Ill.Dec. 162, 481 N.E.2d 962 (1985) (exemption does not apply where set-off judgment does not include an award of fees). III. POSTJUDGMENT ATTORNEY’S FEES Ellis also appeals the district court’s denial of his motion for attorney’s fees for his services" }, { "docid": "3131298", "title": "", "text": "real party in interest here is Ellis, not Lowrance. Therefore, we will treat this appeal as one brought by Ellis rather than Lowrance. . Lowrance appealed this judgment pro se, and this court affirmed without oral argument in an unpublished order. . We also note that on'May 30, 1991, Ellis filed a new garnishment affidavit against the Stotler funds with the Clerk of the District Court, seeking to enforce the award of attorney’s fees. The propriety of that garnishment is still under consideration by the district court. . Ellis is entitled to an attorney’s lien on the fee award itself if he fulfills the notice requirements. It is not entirely clear that he has done so here, given that he served Hacker’s counsel rather than Hacker. In re Del Grosso, 111 B.R. 178, 182 (Bankr.N.D.Ill.1990) (to be effective, notice of lien must be served on a party, not on counsel for a party); Cazalet v. Cazalet, 322 Ill.App. 105, 54 N.E.2d 61 (1944) (same). But we see no basis for imposing such a lien on the Stotler funds absent a garnishment action against those funds seeking to enforce that judgment. . The magistrate judge construed this document as a pleading in response to Hacker’s motion to supplement the record. Report and Recommendation at 8 (Sept. 15, 1989)." }, { "docid": "3131282", "title": "", "text": "CUDAHY, Circuit Judge. Attorney Morris Ellis appeals the district court’s denial of his motion for attorney’s fees stemming from his representation of Thomas J. Lowrance in proceedings to collect on a judgment entered in favor of Lowrance against Stephen J. Hacker. Ellis also contends that the district court erred in denying him a statutory attorney’s lien on certain funds belonging to Hacker that are currently held by the court. We affirm the judgment as to the attorney’s lien but reverse in part the denial of fees. I. FACTS On February 1, 1984, Stephen J. Hacker opened a commodity trading account with the brokerage firm of Rosenthal & Company (Rosenthal). In connection with the opening of that account, Hacker entered into a Commodity Customer Agreement with Rosenthal (the Agreement). The Agreement included the following provision: In the event of the closing of the accounts of the undersigned [Hacker] by you [Rosenthal] or the undersigned in whole or in part, the undersigned shall remain liable for any deficiency, together with interests and costs, expenses and reasonable attorneys’ fees should an attorney be employed to enforce collection. From mid-June to mid-September of 1984, Thomas J. Lowrance acted as Hacker’s commodities trading adviser for Hacker’s account with Rosenthal. During that period, Hacker lost more than $500,000 in that account. At the time the account was closed, it had a debit balance of $52,309.30 for which Hacker was liable under the terms of the Agreement. Lowrance paid that balance pursuant to his relationship with Rosenthal, and Rosenthal then assigned to Lowrance all of its rights, title and interest in the account, including the right to collect the debit balance from Hacker. On February 12, 1985, Hacker paid Low-rance $13,000, which he claimed constituted an accord and satisfaction of the debt. Lowrance brought an action against Hacker to collect the balance. On July 31, 1987, after a three-day bench trial, the district court entered judgment for Lowrance in the amount of $39,309.30 plus interest. The court reserved judgment on the question whether Hacker’s contract with Rosen-thal required Hacker to pay Lowrance’s attorney’s fees. On October 8," }, { "docid": "3131285", "title": "", "text": "him but to Phentex Enterprises, Ltd., a corporation he apparently controlled. After an evidentiary hearing on this issue, but before decision by the magistrate judge, Hacker obtained assignment of a judgment previously rendered against Lowrance in the principal amount of $150,690.36. On May 16, 1989, Hacker moved for a set-off of the two judgments. On September 15, 1989, the magistrate judge held that Hacker could properly set off Lowrance’s July 31, 1987 judgment against him. On January 30, 1990, the district court entered an order adopting and affirming this aspect of the magistrate judge’s decision. On September 27, Ellis filed a petition in his own name seeking $36,450 in attorney’s fees for the postjudgment proceedings, including the prior appeals. Ellis’ petition also sought a statutory attorney’s lien on the Stotler funds for the attorney’s fees already awarded. On October 5, 1990, the magistrate judge issued a report rejecting all of Ellis’ claims and recommending that his motion be denied. The district court adopted the magistrate judge’s Report and. Recommendation in full, and Ellis appeals. II. ATTORNEY’S LIEN Ellis claims an attorney’s lien on the garnished Stotler funds under the Illinois Attorneys Lien Act. The Act provides: Attorneys at law shall have a lien upon all claims, demands and causes of action ... which may be placed in their hands by their clients for suit or collection, or upon which suit or action has been instituted, for the amount of any fee which may have been agreed upon ... or, in the absence of such agreement, for a reasonable fee, for the services of such suits, claims, demands or causes of action.... To enforce such lien, such attorneys shall serve notice in writing ... .upon the party against whom their clients may have such suits, claims or causes of action'_ Such lien shall attach to any verdict, judgment or order entered and to any money or property which may be recovered, on account of such suits, claims, demands or causes of action, from and after the time of service of the notice. Ill.Rev.Stat. ch. 13, ¶ 14 (1990) (emphasis supplied). Illinois" }, { "docid": "21597942", "title": "", "text": "accord and satisfaction. This situation is far different from the Poray case where the creditor was present in bankruptcy court when the settlement was fashioned. Poray, 13 Ill.App.2d 369. Winter v. Meier, 151 Ill.App. 572, 574 (1909), also cited by Hacker, is distinguishable from this case because in Winter, the creditor had given a written release of all claims, indicating an understanding of the financial condition of the debtor. Lowrance’s failure to dispute Hacker’s cash flow problem does not indicate that he accepted payment with knowledge of Hacker’s insolvency, as Hacker claims. The district court’s finding that Hacker was using his poor financial condition to seek additional time to pay must be upheld. Finally, Lowrance filed with this court a motion “to be granted leave to correct judgment” pursuant to Fed.R.Civ.P. 60(a). Such a motion is not properly before this court. Under Rule 60(a), the determination of whether a judgment should be corrected must first be made by the district court and it was not. The district court’s determination that Defendant Hacker failed to establish the affirmative defense of accord and satisfaction was correct and the judgment awarding Plaintiff Lowrance $39,309.30 plus interest is AFFIRMED. . In the parlance of commodities trading, churning \"denotes a course of excessive trading through which a broker advances his own interests (e.g. commissions based on volume) over those of his customer.” Costello v. Oppenheimer & Co., Inc., 711 F.2d 1361, 1367 (7th Cir.1983) (citing Fey v. Walston & Co., Inc., 493 F.2d 1036, 1040 n. 1 (7th Cir.1974)). . It is unclear whether Illinois law authorizes a creditor to reserve rights to a debt by adding an endorsement, as Lowrance did in this case. Nelson v. Fire Insurance Exchange, 156 III.App.3d 1017, 1021-22, 109 Ill.Dec. 516, 520-21, 510 N.E.2d 137, 141-42, appeal denied, 116 Ill.2d 562, 113 Ill.Dec. 303, 515 N.E.2d 112 (1987). This court need not address this question since the absence of a bona fide dispute establishes that no accord and satisfaction arose." }, { "docid": "11792177", "title": "", "text": "Northern District of Illinois. Federal jurisdiction is based on diversity of citizenship, and Illinois law governs the resolution of this dispute. Judge Plunkett ruled against Hacker on his defenses of accord and satisfaction and “churning,” and awarded Lowrance the $39,309.30, while reserving judgment on the issue of whether Hacker was liable for Lowrance's attorneys’ fees. This court affirmed that judgment, Lowrance v. Hacker, 866 F.2d 950 (7th Cir.1989). While that appeal was pending, Judge Plunkett ordered Hacker to pay Lowrance $8,273 in attorneys’ fees. Hacker filed a timely notice of appeal arguing that the assignment to Lowrance did not include an assignment of right to attorneys’ fees. In the alternative, Hacker argues that even if Lowrance is entitled to attorneys’ fees, he is still not entitled to the part of the award compensating Lowrance for paying lawyers hired by Lowrance’s principal attorney solely to help investigate Hacker’s affairs. STANDARD OF REVIEW Hacker’s challenge to the award of attorneys’ fees is based purely on interpretation of the assignment document. Assignments are to be interpreted in the same way as any other contract. See Advance Process Supply Co. v. Litton Ind. Credit Corp., 745 F.2d 1076 (7th Cir.1984). The interpretation of an unambiguous contract is a question of law. Pipe Fitters’ Welfare Fund v. Mosbeck Ind. Equip., Inc., 856 F.2d 837, 840 (7th Cir.1988). This court’s review is de novo. The challenge to the fees attributable to the investigating attorneys is a question of fact. The determination that those attorneys were employed “to enforce collection” involved facts outside the four corners of the commodity-trading agreement, and is therefore treated as a finding of fact. See J. Calamari & J. Perillo, Contracts, § 3-12, p. 124 (2d ed. 1977). Judge Plunkett ruled that the attorneys’ fees were a part of the attempt to enforce collection, and were therefore included in Hacker’s contract obligation. To prevail on this issue, Hacker must demonstrate that Judge Plunkett’s finding was clearly erroneous. Fed.R.Civ.P. 52(b). DISCUSSION This case calls for the application of principles of contract interpretation. The overriding goal of contract interpretation is to give effect to" }, { "docid": "21597931", "title": "", "text": "the following: Restriction regarding settlement & accord & satisfaction refused. This check is accepted as partial payment only. All rights of endorser are reserved. Balance of $39,309.30 remaining due and payable plus all interest costs & fees. Lowrance then negotiated the check. Low-rance never signed the purported agreement sent by Hacker. He never informed Hacker of his decision to strike the endorsement or of his addition of a new endorsement claiming to retain all rights to the remainder of the debt. At trial, Hacker stipulated to Lowrance’s prima facie case and offered an affirmative defense of accord and satisfaction. Hacker claimed that Lowrance had agreed to accept the $13,000 as full payment for the debt, that the check with its endorsement constituted evidence of the agreement, and that Lowrance improperly struck the accord and satisfaction language from the back of the check. Hacker also argued that his perilous financial situation created the necessary conditions for an accord and satisfaction. The district court, applying Illinois law, found that there was no accord and satisfaction in this case and awarded Lowrance $39,309.30. The district court held that Hacker failed to establish the defense of accord and satisfaction because no bona fide dispute about the amount of Hacker’s debt existed between the parties. Under Illinois law: To constitute an accord and satisfaction there must be an honest dispute between the parties, a tender with explicit understanding of both parties that it was in full payment of all demands, and an acceptance by the creditor with the understanding that the tender is accepted in full payment. As with all contracts, to be enforceable there must be consideration, a meeting of the minds with the intent to compromise and, finally, execution of the agreement. W.E. Erickson Const., Inc. v. Congress-Kenilworth Corp., 132 Ill.App.3d 260, 269, 87 Ill.Dec. 536, 543, 477 N.E.2d 513, 520 (1985) (citations omitted). The burden of proving these elements lies with the party asserting the accord and satisfaction defense. Kreutz v. Jacobs, 39 Ill.App.3d 515, 349 N.E.2d 93 (1976) (citing Insurance Co. of N. America v. Knight, 8 Ill.App.3d 871, 291 N.E.2d" }, { "docid": "3131297", "title": "", "text": "Rather, the district court awarded fees based on what it determined to be a reasonable hourly rate. We do not see why an attorney who does not even plead an express contract should be worse off than one who does plead one but fails to prove its existence. Finally, Hacker argues that even if Ellis would otherwise have the right to recover postjudgment fees from Hacker, the district court’s order denying Ellis’ petition should be affirmed because the fees claimed are “unreasonable, unwarranted and excessive.” Hacker then offers several pages of “examples” of Ellis’ allegedly unreasonable, unwarranted and excessive claims. The determination of a reasonable attorney’s fee, however, is a factual question for the district court on remand. Therefore, we decline to address Hacker’s contentions in this area. IV. CONCLUSION For the foregoing reasons, the judgment of the district court is Affirmed in part, Reversed in part and Remanded in part for further proceedings not inconsistent with this opinion. . Although Lowrance is still the named plaintiff in this case, it is clear that the real party in interest here is Ellis, not Lowrance. Therefore, we will treat this appeal as one brought by Ellis rather than Lowrance. . Lowrance appealed this judgment pro se, and this court affirmed without oral argument in an unpublished order. . We also note that on'May 30, 1991, Ellis filed a new garnishment affidavit against the Stotler funds with the Clerk of the District Court, seeking to enforce the award of attorney’s fees. The propriety of that garnishment is still under consideration by the district court. . Ellis is entitled to an attorney’s lien on the fee award itself if he fulfills the notice requirements. It is not entirely clear that he has done so here, given that he served Hacker’s counsel rather than Hacker. In re Del Grosso, 111 B.R. 178, 182 (Bankr.N.D.Ill.1990) (to be effective, notice of lien must be served on a party, not on counsel for a party); Cazalet v. Cazalet, 322 Ill.App. 105, 54 N.E.2d 61 (1944) (same). But we see no basis for imposing such a lien on" }, { "docid": "21597930", "title": "", "text": "just been entered against him in a proceeding brought by American Can Co. Hacker then offered to make a partial payment of the debt. Lowrance claims that Hacker promised to pay $14,000 and never told him the payment was intended to settle the entire debt. Hacker claims that he offered $13,000 in satisfaction of the outstanding debt. It is undisputed that on that same day Hacker sent Lowrance a form letter of agreement, unexecuted by Hacker, along with a check for $13,000. The letter provided in part that “in lieu of conditions which exist and lack of remedies available to improve them, I have enclosed a check which we discussed as full and final payment by me to you, your successors and assigns, for any and all outstanding balances which exist on this date of February 21, 1985.” On the back of the accompanying $13,000 check, Hacker had added a provision that said “Accord and satisfaction understood in our settlement agreement.” Upon receipt of Hacker’s check Low-rance deleted the words Hacker had added and inserted the following: Restriction regarding settlement & accord & satisfaction refused. This check is accepted as partial payment only. All rights of endorser are reserved. Balance of $39,309.30 remaining due and payable plus all interest costs & fees. Lowrance then negotiated the check. Low-rance never signed the purported agreement sent by Hacker. He never informed Hacker of his decision to strike the endorsement or of his addition of a new endorsement claiming to retain all rights to the remainder of the debt. At trial, Hacker stipulated to Lowrance’s prima facie case and offered an affirmative defense of accord and satisfaction. Hacker claimed that Lowrance had agreed to accept the $13,000 as full payment for the debt, that the check with its endorsement constituted evidence of the agreement, and that Lowrance improperly struck the accord and satisfaction language from the back of the check. Hacker also argued that his perilous financial situation created the necessary conditions for an accord and satisfaction. The district court, applying Illinois law, found that there was no accord and satisfaction in this" }, { "docid": "3131291", "title": "", "text": "course of the garnishment proceedings. There is strong evidence in the record to support that conclusion. According to the magistrate judge, Ellis did not appear in that proceeding on Lowrance’s behalf after Hacker filed his motion, for set-off in May of 1989. As early as January of 1989, Lowrance filed pro se an “Affidavit of Thomas J. Lowrance in Support of Plaintiff’s Position to Deny Defendant’s Motion to Supplement Record on Pending Motions to Quash Garnishment.” In March of 1989, Lowrance sent a letter to Hacker’s attorney informing him that “Morris W. Ellis is not authorized, in the absence of my signed written expressed authorization to the contrary, Mr. Ellis is not authorized to settle or receive any payment of money in behalf of Thomas J. Lowrance relative to all matters” in Low-rance’s case against Hacker. And Low- ranee appealed the district court’s ruling of January 30, 1990, to this court pro se. On the other hand, there is no question that Ellis was acting on behalf of Lowrance in defending Lowrance’s judgments against Hacker’s appeals to this court. There was no suggestion that Lowrance objected to Ellis’ representation in those appeals. Had Ellis brought a motion for attorney’s fees for those appeals immediately following this court’s rulings in Lowrance’s favor, Ellis’ “contractual entitlement” to fees would have been uncóritested, and the improper denomination of the petition a mere technicality that the court would have overlooked. Indeed, Ellis claims that the original petition for fees in this case, which the district court granted, was brought in his own name, and Hacker does not dispute this. In our view, Ellis’ entitlement to fees for his services in protecting Lowrance’s judgment on appeal did not become “com tested” simply because he and Lowrance apparently came to a parting of the ways in the garnishment proceedings. Therefore, we conclude that Ellis has standing to petition for his reasonable fees for those services. Given the strong evidence of his estrangement from Lowrance during the garnishment proceedings, however, we find that he may not petition Hacker directly for fees incurred during those proceedings. Hacker also" }, { "docid": "3131286", "title": "", "text": "ATTORNEY’S LIEN Ellis claims an attorney’s lien on the garnished Stotler funds under the Illinois Attorneys Lien Act. The Act provides: Attorneys at law shall have a lien upon all claims, demands and causes of action ... which may be placed in their hands by their clients for suit or collection, or upon which suit or action has been instituted, for the amount of any fee which may have been agreed upon ... or, in the absence of such agreement, for a reasonable fee, for the services of such suits, claims, demands or causes of action.... To enforce such lien, such attorneys shall serve notice in writing ... .upon the party against whom their clients may have such suits, claims or causes of action'_ Such lien shall attach to any verdict, judgment or order entered and to any money or property which may be recovered, on account of such suits, claims, demands or causes of action, from and after the time of service of the notice. Ill.Rev.Stat. ch. 13, ¶ 14 (1990) (emphasis supplied). Illinois courts have consistently held that no enforceable lien is created under the statute until the attorney has served the required notice. McKee-Berger-Mansueto, Inc. v. Board of Education, 691 F.2d 828, 835 (7th Cir.1982). Ellis served notice of lien on Stotler and on Hacker’s attorney on February 7, 1990. By that time, however, the July 31, 1987 judgment, in favor of Lowrance had been extinguished by the set-off of judgments. Since Lowrance had sought garnishment of the Stotler funds to enforce that judgment only, there was no claim on those funds to which Ellis’ lien could attach. .Ellis attempts to avoid this conclusion by arguing that the set-off did not extinguish all of Lowrance’s interest in the garnished funds because attorney’s fees are exempt from set-off under section 12-178(5) of the Illinois Code of Civil Procedure, Ill.Rev. Stat. ch. 110. We find this argument unpersuasive. The only claim Lowrance made against the Stotler funds was for the amount of the judgment on the merits plus interest. That judgment clearly did not include an award of attorney’s" }, { "docid": "3131284", "title": "", "text": "1987, the district court entered a written decision holding that Rosenthal’s assignment to Lowrance included the right to attorney’s fees, and awarding Lowrance $8,273 of the $12,343 in fees he requested. Judgment in conformity with that ruling was entered on June 14, 1988. Hacker prosecuted separate appeals from the judgment on the merits and the award of attorney’s fees, and this court affirmed both judgments. See Lowrance v. Hacker, 866 F.2d 950 (7th Cir.1989) (affirming judgment on the merits), and Lowrance v. Hacker, 888 F.2d 49 (7th Cir.1989) (affirming award of attorney’s fees). On October 28, 1987, Lowrance began garnishment proceedings against Stotler & Company (Stotler), a Chicago commodities brokerage firm which held funds allegedly belonging to Hacker. The garnishment affidavit served on Stotler referred only to the district court’s July 31, 1987 judgment, in which the issue of attorney’s fees had been reserved, and sought $39,309.30 in principal plus $12,116.20 in interest. Hacker challenged the validity of the garnishment on the ground that the funds in the account in question did not belong to him but to Phentex Enterprises, Ltd., a corporation he apparently controlled. After an evidentiary hearing on this issue, but before decision by the magistrate judge, Hacker obtained assignment of a judgment previously rendered against Lowrance in the principal amount of $150,690.36. On May 16, 1989, Hacker moved for a set-off of the two judgments. On September 15, 1989, the magistrate judge held that Hacker could properly set off Lowrance’s July 31, 1987 judgment against him. On January 30, 1990, the district court entered an order adopting and affirming this aspect of the magistrate judge’s decision. On September 27, Ellis filed a petition in his own name seeking $36,450 in attorney’s fees for the postjudgment proceedings, including the prior appeals. Ellis’ petition also sought a statutory attorney’s lien on the Stotler funds for the attorney’s fees already awarded. On October 5, 1990, the magistrate judge issued a report rejecting all of Ellis’ claims and recommending that his motion be denied. The district court adopted the magistrate judge’s Report and. Recommendation in full, and Ellis appeals. II." } ]

[ { "docid": "21217697", "title": "", "text": "the cause to the District Court for further proceedings on the sole issue of whether Northern was subject to the jurisdiction of the District Court. lSomewhat to our surprise, Northern made no attempt to secure amendment of its prior pleadings which admitted facts on which the District Judge relied in part in his finding that Northern had those requisite minimal contacts with the State of Illinois which would justify effective extra-territorial service under §§16 and 17 of the Illinois Civil Practice Act, Ill. Rev.Stat.1963, c. 110, §§ 16, 17, and thus bring this case within the provisions of Federal Rules of Civil Procedure, Rule 4(d) (7) which authorizes service in the manner prescribed by the law of the State. The Rule, as it read prior to the recent amendments set out in the margin of 315 F.2d 791, has been interpreted to authorize service such as was made here. Giffin v. Ensign, 3 Cir., 1956, 234 F.2d 307, 311; Farr & Co. v. Cia. Intercontinental de Navegacion, 2 Cir., 1957, 243 F.2d 342; R.I.T.A. Chemical Corp. v. Malmstrom Chemical Corp., N.D., Ill., 1962, 200 F.Supp. 954. That interpretation is supported by the subsequent amendments making the Rule more explicit. In addition there is the comment of the Advisory Committee respecting past cases holding that § 4(d) (7) was not limited, even prior to the amendment, by the territorial restrictions of Rule 4(f), as Northern here contends. The Advisory Committee stated that the salutary results of these prior cases were intended to be preserved. The District Court again found in favor of Nortown and this appeal followed. In this Court Northern contends that it must prevail because Nortown introduced no additional evidence on remand to support the allegations that the contract was made and to be performed in Illinois. Nortown’s position is that it was not obligated to adduce such evidence to support uncontroverted jurisdictional facts, as the admissions referred to above remained in full force and effect in the pleadings. Northern in its brief after remand refers to harmless and inadvertent admissions of jurisdictional facts. In the light of the" } ]

[ { "docid": "21998621", "title": "", "text": "summons forwarded in registered mail envelope, restricted delivery to Puryear, at his Memphis, Tennessee business address was returned with the notation of “unclaimed” on the envelope. . Rule 12(b), F.R.Civ.P.: . Rule 12(h)(1) provides: . Stavang v. American Potash and Chemical Corporation, 344 F.2d 117, 118-119 (5th Cir. 1965), (12(b)(6) motion to dismiss asserting as sole ground failure to state claim upon which relief could be granted was waiver of challenges to personal jurisdiction), Ryan v. Glenn, 52 F.R.D. 185, 189 (N.D.Miss.1971), (12(b)(6) motion asserting sole ground of failure to state a claim upon which relief could be granted and omitting challenge to service of process held waiver of latter defense) footnote 7, at 190, and cases cited therein. . Of course, had Puryear, who admittedly lived and did business within the “bulge” area of 100 miles from Oxford, the place of trial, been personally served at his Memphis residence by the United States Marshal for the Western District of Tennessee, such personal service would have unquestionably established in personam jurisdiction of this forum. . . Rule 4(d)(7) was amended in 1963 to overcome whatever doubts had previously existed as to the ability of federal courts to utilize [forms of extraterritorial service of process authorized by the laws of the several states], . . . The Notes of the Advisory Committee . . . show that the purpose of the amendment was not simply to provide a second way of serving persons already subject to the state long-arm statutes, but rather to allow complicated controversies to be ended by a single lawsuit if all the necessary third parties could be found within 100 miles of the courthouse. See 2 Moore, Federal Practice ¶ 4.42[2] (2d ed. 1967).” Coleman v. American Export Isbrandtsen Lines, Inc., 405 F.2d 250 at 252 (2 Cir. 1968); Sevits v. McKieman-Terry Corp. (New Jersey), 270 F.Supp. 887 (S.D.N.Y.1967); Pillsbury Co. v. Delta Boat & Barge Rental, Inc., 72 F.R.D. 630 (E.D.La.1976) (due process measured by “minimum contacts” with the state of service under Rule 4(f), F.R.Civ.P.); see Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 66" }, { "docid": "12708594", "title": "", "text": "service within the state on a state official, deemed by law to be the agent of the out-of-state party for the reception of service. * * * A question arising in the use of these statutes or rule in federal actions is: do they conflict with the requirement of Rule 4(c) * * *? Prior to 1963, the Second Circuit had held that Rule 4(d) (7) incorporated the state method of service into actions under the Federal Rules, and that Rule 4(c) was no barrier to service by mail on the out-of-state party under state practice. [Farr & Co. v. Cia. Intercontinental de Navegacion de Cuba, S.A., 2 Cir., 1957, 243 F.2d 342.] “This conclusion was strengthened by the 1963 amendments to Rule 4. * * * “Ideally, Rule 4(c) should have been amended * * * but it seems that the Advisory Committee did not deem such an amendment to Rule 4(c) necessary, and in its 1963 Note took the position that Rule 4(c) is not a limitation upon service under * * * state statutes * * 2 Moore #4.08, at 1009-11. The 1963 Note to Rule 4(d) (7), see 2 Moore #4.01 [19], at 931, clearly supports this view of 4(c)’s application to service made pursuant to 4(d) (7) or 4(e): “Thus where the * * * state statute or rule, calls for a mode of service of original process other than by personal delivery to the party, the mode envisioned by the * * * state provision may be followed. If an aspect of the service called for * * * is by publication or by notice mailed by the plaintiff or his attorney, the marshal or a person specially appointed by the Court need play no part.” 2 Moore #4.08, at 1011; accord 2 Moore #4.19, at 1072, #4.32 [2], at 1240 & n. 27. . This same provision applies to any nonresident person or corporation engaging in business in Florida, which engagement is also deemed the equivalent of appointment of the secretary of state as agent for service of process. Fla.Stat.Ann. § 47.16(1). ." }, { "docid": "3183894", "title": "", "text": "306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). It is plain that in this case there are at least minimal contacts within this district meeting these standards, as I have already found under the venue provisions of § 22. Thus, there is no constitutional impediment to service outside the United States here provided that adequate notice is given. There is no question that S.p.A. was not only “found” in Italy as § 22 provides but had full notice concerning this suit by service on its general manager as Rules 4(e) and (i), F.R.C.P., authorize. I see no reason to limit the provisions of § 22 so as to apply only to service within the United States. But quite apart from this, service is also valid under the Federal Rules authorizing service in accordance with local state statutes. As has been pointed out, service on S.p.A. under the Automobile Dealers Act was proper under Rule 4, F.R.C.P., and the relevant provisions of the New York C.P.L.R. Whereas the Automobile Dealers Act contained no provision for service of process, the Robinson-Patman Act does. However, the provisions of the Robinson-Patman Act relating to service are not exclusive and are supplemented by the service provisions of the rules. I see no reason to hold that service under the Robinson-Patman Act may not be made under a state “long arm” statute. Even assuming there was a conflict between § 22 and the Rules, the Rules would prevail. Rule 1, F.R.C.P., provides that the Rules of Civil Procedure apply to all civil suits. There is no exception for anti-trust cases. The enabling legislation provided that “[a] 11 laws in conflict with such rules shall be of no further force and effect after such rules have taken effect.” (28 U.S.C. § 2072). The Supreme Court in promulgating amendments to the Rules assumed apparently that state long arm statutes were applicable in federal question cases. See Amendments to Rules of Civil Procedures, Statement of Black and Douglas, J.J., 374 U.S. 861, 869 (1963). See also, Advisory Committee’s Notes to Rules 4(d) (7); 4(e) and 4(f). It may be" }, { "docid": "17147088", "title": "", "text": "693 F.2d at 515-17. By contrast, two of these cases were treated as controlling in Lapeyrouse. Lone Star Package Car Co. v. Baltimore & O.R. Co., 212 F.2d 147 (5th Cir.1954); Terry v. Raymond International, Inc., 658 F.2d 398 (5th Cir. 1981). Lone Star is the source of the broad dictum applied in Lapeyrouse that amenability in federal question cases generally is governed by a federal standard. Nevertheless, it is clear that Lone Star does not preclude the interpretation of Rule 4 reached in Burstein. First, in an alternative holding, the Lone Star court held service of process proper pursuant to Rule 4(d)(3), which provides for service upon an agent wholly apart from any provision of state law. See Burstein, 693 F.2d at 515; Jim Fox Enterprises, Inc. v. Air France, 705 F.2d 738 at 741 n. 8 (5th Cir.1983). A much more critical distinction, however, is that Lone Star was decided in 1954, long before the 1963 amendments to Rule 4 added the second sentence of Rule 4(e). Thus, at the time of Lone Star, nothing in Rule 4 required that service of process ever be asserted “under the circumstances” permitted by state law. See 4 C. Wright & A. Miller, supra, § 1075 at 312-13 (discussion of 1963 amendments). Accordingly, even Lone Star’s alternative holding that service was proper under Rule 4(d)(7) and the Texas long-arm statute is consistent with Bur-stein. The Rule as it then stood provided only for service in the “manner” of state law, saying nothing regarding amenability. Had Burstein come upon the heels of the 1963 amendments to Rule 4, there would be virtually no question that it stated a proper modification of Lone Star in light of intervening legislative action. Unfortunately that was not the case. Like a Tower of Babel, our post-1963 pronouncements spoke in irreconcilable voices. Without citing or attempting to distinguish Lone Star, or discussing the amendments to Rule 4, we at least twice applied a state standard of amenability in federal question cases. Familia de Boom v. Arosa Mercantil, S.A., 629 F.2d 1134, 1138 (5th Cir.1980) (a Jones Act" }, { "docid": "21337500", "title": "", "text": "So.2d 262, 264-265 (Fla.Stat.Ann. § 47.162). . See authorities cited in notes 2 and 3, supra. Compare Hess v. Pawloski, 1927, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091. . See generally, Hart & Wechsler, The Federal Courts and the Federal System 435-36 (1953); Hill, “State Procedural Law in Federal Nondiversity Litigation,” 69 Harv.L.Rev. 66 (1955); Mishkin, “The Variousness of ‘Federal Law’,” 105 U.Pa. L.Rev. 797 (1957); Note, 69 Yale L.J. 1428 (1960); Fahs v. Martin, 5 Cir. 1955, 224 F.2d 387, 392. . The present Rule 2 is the same as the Rule 2 adopted in 1844, except that the text of the first sentence has been rearranged and the Rule 7 of 1844 was made the second sentence of the present rule. . 134 U.S. at 493, 10 S.Ct. at 589. . Letter of Transmittal of Proposed Amendments to Rules of Civil Procedure by the Advisory Committee on Admiralty Rules, printed in Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the United States District-Courts p. 2 (1964). . Monsieur Henri Wines, Ltd. v. S.S. Covadonga, D.N.J.1963, 222 F.Supp. 139, 140; accord D/S A/S Flint v. Sabre Shipping Corp., E.D.N.Y.1964, 228 F. Supp. 384, 389. . See, e.g., Seawind Compania, S.A. v. Crescent Line, Inc., 2 Cir. 1963, 320 F.2d 580; cases cited note 9, supra. . Thus there is no conflict between the Admiralty Rules and the Watercraft Statute, so that 28 U.S.C. § 2073, which states-that, “All laws in conflict with such [admiralty] rules shall be of no further force or effect after such rules have taken effect,” is of no relevance. . Valkenburg, K.-G. v. The S.S. Henry Denny, 7 Cir. 1961, 295 F.2d 330, 333; accord Paige v. Shinnihon Kisken, E.D. La.1962, 206 F.Supp. 871." }, { "docid": "3325698", "title": "", "text": "were bound by the forum state’s long-arm statute, there would have been little reason for the 100-mile provision of Rule 4(f), since other sections of Rule 4 provide for service on persons already subject to the forum state’s long-arm statute. See, Coleman, supra at 251-252. . At least one commentator has suggested that the courts should apply a federal standard for amenability to suit when service is made under Rule 4(f). See, 4 Wright & Miller, supra § 1127 at 534-535, § 1075 at 314. However, no court has yet unequivocally adopted such a standard. See, Annot., 8 A.L.R.Fed. 784, 789-790 (1971). . Rule 4(f) does not conflict with Fed.R.Civ.P. 82 which states that the Federal Rules of Civil Procedure should not be construed to extend the jurisdiction of the United States district courts or the venue of actions therein. Rule 82 refers to subject matter jurisdiction, not to personal, or territorial, jurisdiction. See, Mississippi Publishing Corp., supra, 326 U.S. at 445, 66 S.Ct. 242. . See Advisory Committee Note on 1963 Amendment to Rule 4(f). . However, lack of diversity between Lee and Bartlett would be a problem in either district if Lee decided to amend his complaint in order to allege a claim against Bartlett if the latter were to be impleaded as a third-party defendant in this case. (Lee has not expressed any such desire to date.) The Fourth Circuit has concluded that a plaintiff in a diversity case should not be permitted to amend his complaint to allege a claim against a non-diverse third-party defendant without an independent jurisdictional basis. See, Kenrose Manufacturing Co., Inc. v. Fred Whitaker Co., Inc. v. Kilodyne, Inc., 512 F.2d 890, 893-894 (4th Cir. 1972). The Third Circuit has not ruled on the point, cf., Sheppard v. Atlantic States Gas Co., 167 F.2d 841, 845 (3d Cir. 1948), and the district courts within the Circuit are split. See, discussion in CCF Industrial Park, Inc. v. Hastings Industries, Inc., 392 'F.Supp. 1259 (E.D.Pa. 1975), and cases cited therein. There are some indications in the case law that the Third Circuit would be" }, { "docid": "4293986", "title": "", "text": "*■ for service of a summons * * * upon a party not an inhabitant of or found within the state, * * * service may * * * be made under the circumstances and in the manner prescribed in the statute or rule.” At the same time the first sentence of Rule 4(f) was amended to read: “All process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held, and, when authorized by a statute of the United States or by these rules, beyond the territorial limits of that state.” The amendment inserted the phrase “by these rules” thereby making it clear that the rules, as well as a federal statute, may authorize service beyond the territorial limits of the state. In their amended form, Rules 4 (e) and 4(f), read together, plainly mean that a party not an inhabitant or found within the state may be served with summons in a federal court action under the circumstances and in the manner prescribed by state statute. The Advisory Committee’s notes indicate that the amendments were intended to have that effect, so that the federal courts might make use of new state “long-arm” statutes. See Advisory Committee’s Notes to Rules 4(d) (7), 4(e) and 4(f). The amended Rules 4(e) and •4(f) do not contravene the Enabling Act (28 U.S.C. § 2072), which forbids the Supreme Court to prescribe rules which “abridge, enlarge or modify any substantive right,” for the right affected is not a “substantive right” within the meaning of that statute. Nor are the rules in conflict with Rule 82 which states that the Rules of Civil Procedure “shall not be construed to extend or limit the jurisdiction of the United States district courts” for “jurisdiction” as used in Rule 82 refers only to jurisdiction over the subject matter, not to jurisdiction over the person. Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 66 S.Ct. 242, 90 L.Ed. 185 (1946) is direct authority for each of these propositions. It is true that in Arrowsmith v. United Press" }, { "docid": "17147087", "title": "", "text": "as authorizing extraterritorial service pursuant to state long arm statutes, personal jurisdiction questions have been analyzed both in terms of due process and amenability under the state statute that was invoked, notwithstanding the differences in wording between these parts of the rule.”), citing Time, Inc. v. Manning, 366 F.2d 690 (5th Cir.1966) (discussed infra); 4 C. Wright & A. Miller, supra, § 1114 at 469 (“Since neither the Advisory Committee Notes nor the text of the rule provides any clear distinction between the two provisions and there is no apparent reason to prefer the use of one or the other rule in connection with extraterritorial service pursuant to state law, nothing should turn on plaintiff’s use of Rule 4(d)(7) rather than Rule 4(e) or vice versa.”). Having concluded that Rule 4 was properly interpreted and applied in Burstein, we must ask whether the principle of stare decisis prevents this panel from following it. Burstein discussed a number of prior Fifth Circuit decisions, concluding that none of them was inconsistent with its view of Rule 4. 693 F.2d at 515-17. By contrast, two of these cases were treated as controlling in Lapeyrouse. Lone Star Package Car Co. v. Baltimore & O.R. Co., 212 F.2d 147 (5th Cir.1954); Terry v. Raymond International, Inc., 658 F.2d 398 (5th Cir. 1981). Lone Star is the source of the broad dictum applied in Lapeyrouse that amenability in federal question cases generally is governed by a federal standard. Nevertheless, it is clear that Lone Star does not preclude the interpretation of Rule 4 reached in Burstein. First, in an alternative holding, the Lone Star court held service of process proper pursuant to Rule 4(d)(3), which provides for service upon an agent wholly apart from any provision of state law. See Burstein, 693 F.2d at 515; Jim Fox Enterprises, Inc. v. Air France, 705 F.2d 738 at 741 n. 8 (5th Cir.1983). A much more critical distinction, however, is that Lone Star was decided in 1954, long before the 1963 amendments to Rule 4 added the second sentence of Rule 4(e). Thus, at the time of Lone" }, { "docid": "3494306", "title": "", "text": "provides an additional method of obtaining service of process on an individual defendant who is not a resident but “has a regular and established place of business” in the district. Without such provision, there would be no meth- or of serving an individual defendant who is not a resident of the district but who has an established place of business as required by the patent venue statute and is not otherwise amenable to service under Fed.R.Civ.P. 4(d) (7). Notes to Advisory Committee on Federal Rules of Civil Procedure Rule 4(d) (1). Fed.R.Civ.P. 4(d) (7) states in part: “it is also sufficient if the summons and complaint are served in the manner prescribed by any statute of the United States or in the manner prescribed by the law of the state in which the district court is held * * [emphasis added.] The use of the disjunctive “or” suggests an intention on the part of the drafters of Rule 4(d) (7) that service of process under state statutes should be viewed as a co-equal alternative to federally prescribed service and further, that the federal statutes, such as § 1694, should not be construed as a restriction on the service of process contemplated by state statutes. Since § 1694 is not jurisdictional our reading of Rule 4(d) (7) does not expand the jurisdiction of the district courts in violation of Fed.R.Civ.P. 82. Our conclusion is consistent with the Ninth Circuit’s decision in Bobrick Corporation v. American Dispenser Co., Inc., 377 F.2d 334 (9th Cir. 1967), where the court held that compliance with either section 1694 or the California statute applicable under Fed.R.Civ.P. 4(d) (7) would be sufficient but that neither was satisfied. The same view has also been espoused in Shelton v. Schwartz, 131 F.2d 805 (7th Cir. 1942), and Ruddies v. Auburn Spark Plug Co., 261 F.Supp. 648 (S.D.N.Y.1966). We conclude that Fed.R.Civ.P. 4(d) (7) provides an independent means of obtaining service of process in patent infringement actions. The Illinois long arm statute, Ill.Rev.Stat. ch. 110, § 17, provides for service when a person or his agent has committed a “tortious" }, { "docid": "3325697", "title": "", "text": "permits service of process on foreign corporations which have qualified to do business in Delaware. 8 Del.C. § 376. In addition, 8 Del.C. § 382 permits service of process on a non-qualifying foreign corporation which transacts business in Delaware in any action growing out of any business transacted by the corporation in Delaware. While the record is not clear on this point, both parties appear to agree that Bartlett could not be served under either of these provisions. . Karlsen was decided prior to the Second Circuit’s decision in Coleman, supra, which distinguished Petrol Shipping Corp. v. Kingdom of Greece, 360 F.2d 103 (2d Cir.), cert. denied, 385 U.S. 931, 87 S.Ct. 291, 17 L.Ed.2d 213 (1966), a case on which the court in Karlsen had relied. See also Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 66 S.Ct. 242, 90 L.Ed. 185 (1946), in which the Supreme Court noted that “Congress could provide for service of process anywhere in the United States”. Id. at 442, 66 S.Ct. at 245. . If the federal court were bound by the forum state’s long-arm statute, there would have been little reason for the 100-mile provision of Rule 4(f), since other sections of Rule 4 provide for service on persons already subject to the forum state’s long-arm statute. See, Coleman, supra at 251-252. . At least one commentator has suggested that the courts should apply a federal standard for amenability to suit when service is made under Rule 4(f). See, 4 Wright & Miller, supra § 1127 at 534-535, § 1075 at 314. However, no court has yet unequivocally adopted such a standard. See, Annot., 8 A.L.R.Fed. 784, 789-790 (1971). . Rule 4(f) does not conflict with Fed.R.Civ.P. 82 which states that the Federal Rules of Civil Procedure should not be construed to extend the jurisdiction of the United States district courts or the venue of actions therein. Rule 82 refers to subject matter jurisdiction, not to personal, or territorial, jurisdiction. See, Mississippi Publishing Corp., supra, 326 U.S. at 445, 66 S.Ct. 242. . See Advisory Committee Note on 1963 Amendment to Rule" }, { "docid": "23553040", "title": "", "text": "provisions of Rule 4 of the Federal Rules of Civil Procedure are met, no significance should attach to the thin veil of state borders as far as the standards of due process are concerned. Id. at 986. In this vein, a case can be made that the extension of federal jurisdiction to the extent of the so-called 100-mile bulge provided by the 1963 amendment of Rule 4(f) contradicts the existence of a due process limitation upon the congressional power over federal service of process. See also F.R.Civ.P. 25(a)(1) which authorizes nationwide federal process in connection with the substitution of a party in the event of the death of a party to a pending action. Even Professor Abraham, who is a strong advocate of a Fifth Amendment limitation on federal service of process, has noted: The Advisory Committee avoided this question [of whether federal service of process statutes are limited by Fifth Amendment due process] in connection with the “100-mile bulge” amendment. They pointed out that “In the light of present-day facilities for communication and travel, the territorial range of service allowed can hardly work hardship upon the parties summoned. . The amendment is but a moderate extension of the territorial reach of Federal process. . . .” This is probably correct in most cases. Even if the Fifth Amendment places restrictions of fairness upon the territorial reach of federal process, the outer limits of fairness do not necessarily run along state borderlines. 8 Vill.L.Rev., supra at 535 (footnotes omitted). In this age of instant communication, due process cannot be measured by the number of state borderlines one must cross. It is certainly no farther from Beaumont in the Eastern District of Texas to El Paso in the Western District of Texas (cf. Rule 4(f) extending a federal court’s process to the territorial limits of a state), than from Portland, Me. to Raleigh, N.C. across twelve state borderlines. We reject the notion that there are no limitations upon extraterritorial service of process under federal statutes such as the securities acts; the existence of the Fifth Amendment would indicate otherwise. However, practical" }, { "docid": "4293987", "title": "", "text": "prescribed by state statute. The Advisory Committee’s notes indicate that the amendments were intended to have that effect, so that the federal courts might make use of new state “long-arm” statutes. See Advisory Committee’s Notes to Rules 4(d) (7), 4(e) and 4(f). The amended Rules 4(e) and •4(f) do not contravene the Enabling Act (28 U.S.C. § 2072), which forbids the Supreme Court to prescribe rules which “abridge, enlarge or modify any substantive right,” for the right affected is not a “substantive right” within the meaning of that statute. Nor are the rules in conflict with Rule 82 which states that the Rules of Civil Procedure “shall not be construed to extend or limit the jurisdiction of the United States district courts” for “jurisdiction” as used in Rule 82 refers only to jurisdiction over the subject matter, not to jurisdiction over the person. Mississippi Publishing Corp. v. Murphree, 326 U.S. 438, 66 S.Ct. 242, 90 L.Ed. 185 (1946) is direct authority for each of these propositions. It is true that in Arrowsmith v. United Press International, 320 F.2d 219 (2d Cir. 1963), the Court of Appeals has construed another rule which refers to state practice, Rule 4(d) (7), which is concerned with service of process within the state, to relate only to the manner of service authorized by state law. But that is because the rule in express terms is so limited. It states that service may be made upon certain types of defendants “in the manner prescribed by the law of the state in which the district court is held for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state.” On the contrary, Rule 4(e), a rule which governs service upon parties not found within the state, is not so limited. It provides for service “under the circumstances and in the manner prescribed in the statute or rule” of the state. It has been pointed out that the phrase “under the circumstances” was added in order to make it clear that the rule" }, { "docid": "22801576", "title": "", "text": "4(f)(2), including by diplomatic channels and letters rogatory, before petitioning the court for alternative relief under Rule 4(f)(3). We find no support for RII’s position. No such requirement is found in the Rule’s text, implied by its structure, or even hinted at in the advisory committee notes. By all indications, court-directed service under Rule 4(f)(3) is as favored as service available under Rule 4(f)(1) or Rule 4(f)(2). See Forum Fin. Group, LLC v. President & Fellows, 199 F.R.D. 22, 23-24 (D.Me.2001). Indeed, Rule 4(f)(3) is one of three separately numbered subsections in Rule 4(f), and each subsection is separated from the one previous merely by the simple conjunction “or.” Rule 4(f)(3) is not subsumed within or in any way dominated by Rule 4(f)’s other subsections; it stands independently, on equal footing. Moreover, no language in Rules 4(f)(1) or 4(f)(2) indicates their primacy, and certainly Rule 4(f)(3) includes no qualifiers or limitations which indicate its availability only after attempting service of process by other means. The advisory committee notes (“advisory notes”) bolster our analysis. Beyond stating that service ordered under Rule 4(f)(3) must comport with constitutional notions of due process and must not be prohibited by international agreement, the advisory notes indicate the availability of alternate service of process under Rule 4(f)(3) without first attempting service by other means. Specifically, the advisory notes suggest that in cases of “urgency,” Rule 4(f)(3) may allow the district court to order a “special method of service,” even if other methods of service remain incomplete or unattempted. Thus, examining the language and structure of Rule 4(f) and the accompanying advisory committee notes, we are left with the inevitable conclusion that service of process under Rule 4(f)(3) is neither a “last resort” nor “extraordinary relief.” Forum Fin. Group, 199 F.R.D. at 23. It is merely one means among several which enables service of process on an international defendant. RII argues that Graval v. P.T. Bakrie & Bros., 986 F.Supp. 1326, 1330 (C.D.Cal.1996), requires attempted service by other methods, including through diplomatic channels or letters rogatory, before resort to court-ordered service under Rule 4(f)(3). The court in" }, { "docid": "23685409", "title": "", "text": "which the district court is held and, when a statute of the United States so provides, beyond the territorial limits of that state. A subpoena may bo served within the territorial limits provided in Rule 45.” The difference between a “summons” and a “subpoena” is too well known to require discussion. In 1938, when Rule 4(f) was enacted, the Advisory Committee to the Supreme Court, which formulated it, made the following comment: “Note to Subdivision (f). This rule enlarges to some extent the present rule as to where service may be made. It does not, however, enlarge the jurisdiction of the district courts.” In respect to Rule 4(d) (7), Chief Judge (then Dean) Charles E. Clark, a member of the Committee, stated: “ * * * and (7) is a kind of catchall, providing that in classes (3) and (3) above, — that is, those dealing with tlio individual or the corporation or association — any form of service which would be good in the State whore the district court is sitting shall also be held good in the federal court.” Federal Rules of Civil Procedure and Proceedings of the American Bar Association Institute, Cleveland, 1938, p. 205. See also 2 Moore’s Federal Practice f 4.19 at p. 949 (2d ed. 3948), in which it is said that Rule 4(f) “evidently refers to ordinary original service, and was not intended to restrict the effectiveness of state substituted service when federal process is served in that manner.” See also Note 70 to Rule 4 in Barron & Holt-zoff, Federal Practice and Procedure, Rules Ed. Vol. 1, p. 303. In 1938 there were at least forty State statutes affecting non-resident motorists; and it seems almost inescapable that if Rule 4(f) was intended to override Rule 4(d) (7), some discussion would have been had on such an important change. It should be noted also that the proposed amendments to the Federal Rules of Civil Procedure and the comments of the Advisory Committee support our conclusion that the district court in the case at bar obtained jurisdiction over the objecting defendants. The Advisory Committee" }, { "docid": "22801575", "title": "", "text": "subsection of Rule 4(f) relevant to our decision, Rule 4(f)(3), permits service in a place not within any judicial district of the United States “by ... means not prohibited by international agreement as may be directed by the court.” As obvious from its plain language, service under Rule 4(f)(3) must be (1) directed by the court; and (2) not prohibited by international agreement. No other limitations are evident from the text. In fact, as long as court-directed and not prohibited by an international agreement, service of process ordered under Rule 4(f)(3) may be accomplished in contravention of the laws of the foreign country. See Mayoral-Amy v. BHI Corp., 180 F.R.D. 456, 459 n. 4 (S.D.Fla.1998). But see Fed.R.Civ.P. 4(f)(2) advisory committee notes (stating that under Rule 4(f)(2), “[sjervice by methods that would violate foreign law is not generally authorized”). RII argues that Rule 4(f) should be read to create a hierarchy of preferred methods of service of process. RII’s interpretation would require that a party attempt service of process by those methods enumerated in Rule 4(f)(2), including by diplomatic channels and letters rogatory, before petitioning the court for alternative relief under Rule 4(f)(3). We find no support for RII’s position. No such requirement is found in the Rule’s text, implied by its structure, or even hinted at in the advisory committee notes. By all indications, court-directed service under Rule 4(f)(3) is as favored as service available under Rule 4(f)(1) or Rule 4(f)(2). See Forum Fin. Group, LLC v. President & Fellows, 199 F.R.D. 22, 23-24 (D.Me.2001). Indeed, Rule 4(f)(3) is one of three separately numbered subsections in Rule 4(f), and each subsection is separated from the one previous merely by the simple conjunction “or.” Rule 4(f)(3) is not subsumed within or in any way dominated by Rule 4(f)’s other subsections; it stands independently, on equal footing. Moreover, no language in Rules 4(f)(1) or 4(f)(2) indicates their primacy, and certainly Rule 4(f)(3) includes no qualifiers or limitations which indicate its availability only after attempting service of process by other means. The advisory committee notes (“advisory notes”) bolster our analysis. Beyond stating" }, { "docid": "18719546", "title": "", "text": "of the nonresident and the court has the power to enter an in personam judgment against him. The giving of the notice by 'serving’ the non-resident with a copy of the writ does not add to this jurisdiction already obtained by serving the Secretary.” Again in footnote 10 on page 69 they say: “As respects the non-resident non-domiciliary, the copy of the writ sent outside the state can have no greater effect than that of notice and cannot confer jurisdiction to render an in personam judgment against the defendant. * * * The copy of the writ sent outside that state to each class of defendants [nonresident domiciliary or nonresident nondomiciliary] is therefore designed merely to give notice of the pendency of the action.” The foregoing has convinced me that the substituted service upon the defendants in this case by way of the Secretary of the Commonwealth of Pennsylvania, plus notice to them by registered mail, is not extraterritorial personal service in violation of Rule 4(f), Fed.R.Civ.P. Professor Moore appears to agree with this conclusion. See 2 Moore, Federal Practice, para. 4.19, pp. 948-949 (2d ed. 1948). Furthermore, I am persuaded that the framers of the federal rules did not mean to limit Rule 4(d) (7) by Rule 4(f), but on the other hand they meant to implement and enlarge the service of process upon statutory agents, and, particularly upon statutory agents of nonresident motorists who happen to reside outside the territorial limits of the district but within the territorial limits of the state. In this light these subsections of Rule 4 are not in conflict with each other but consistent, and should thus be construed. Mississippi Pub. Corp. v. Murphree, 1946, 326 U.S. 438, 445, 66 S.Ct. 242, 90 L.Ed. 185. Indeed to construe Rule 4(f) as proscribing territorial substituted service on nonresident motorists seems to me to be a serious limitation of jurisdiction which is expressly prohibited by Rule 82. The motion of the third-party defendants to dismiss the action of the third-party plaintiffs will be denied. II. Motion of Third-Party Defendants to Dismiss Plaintiffs’ Amended Complaint. The" }, { "docid": "18719547", "title": "", "text": "See 2 Moore, Federal Practice, para. 4.19, pp. 948-949 (2d ed. 1948). Furthermore, I am persuaded that the framers of the federal rules did not mean to limit Rule 4(d) (7) by Rule 4(f), but on the other hand they meant to implement and enlarge the service of process upon statutory agents, and, particularly upon statutory agents of nonresident motorists who happen to reside outside the territorial limits of the district but within the territorial limits of the state. In this light these subsections of Rule 4 are not in conflict with each other but consistent, and should thus be construed. Mississippi Pub. Corp. v. Murphree, 1946, 326 U.S. 438, 445, 66 S.Ct. 242, 90 L.Ed. 185. Indeed to construe Rule 4(f) as proscribing territorial substituted service on nonresident motorists seems to me to be a serious limitation of jurisdiction which is expressly prohibited by Rule 82. The motion of the third-party defendants to dismiss the action of the third-party plaintiffs will be denied. II. Motion of Third-Party Defendants to Dismiss Plaintiffs’ Amended Complaint. The plaintiffs allege that they are citizens of the State of Ohio. An inspection of the amended complaint, as well as the third-party complaint, does not disclose the citizenship of the third-party defendants, Wojnicz, Kulbieda and Hughley. For all that appears, they also may be citizens of Ohio, in which event the court would lack jurisdiction to render a binding judgment in favor of the plaintiffs against the third-party defendants. See: Patton v. Baltimore & O. R. Co., 3 Cir., 1952, 197 F.2d 732, 743; Gladden v. Stockard S. S. Co., 3 Cir., 1950, 184 F.2d 510; McDonald v. Dykes, D.C.E.D.Pa.1947, 6 F.R.D. 569, affirmed per curiam, 3 Cir., 1947, 163 F.2d 828; Osthaus v. Button, 3 Cir., 1934, 70 F.2d 392. As required by Rule 8(a), Fed.R. Civ.P., a pleading which sets forth “a claim for relief, * * * shall contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new ground of jurisdiction to support it," }, { "docid": "3325688", "title": "", "text": "to Ohio Casualty’s contention, Bartlett could be subjected to service of process issuing from this Court. Furthermore, this Court may assert personal jurisdiction over Bartlett, even though Bartlett could not be reached under Delaware’s long-arm statutes. Most courts which have considered the question have concluded that when service is made on a person pursuant to Rule 4(f), the federal court is not obligated to look to the long-arm statute of the forum state in determining amenability to suit. See, e. g., Coleman v. American Export Isbrandtsen Lines, Inc., 405 F.2d 250 (2d Cir. 1968); Spearing v. Manhattan Oil Transportation Corp., 375 F.Supp. 764 (S.D.N.Y.1974); McGonigle v. Penn-Central Transportation Co., 49 F.R.D. 58 (D.Md.1969). Contra, Karlsen v. Hanff, 278 F.Supp. 864 (S.D.N.Y. 1967). This principle has been applied in diversity cases as well as in federal question cases. See, Pierce v. Globemaster Baltimore, Inc., 49 F.R.D. 63 (D.Md.1969); Sevits v. McKiernan-Terry Corp. (New Jersey), 270 F.Supp. 887 (S.D.N.Y.1967). This approach is consistent with the fact that the 100-mile “bulge” provision of Rule 4(f) is a liberalizing measure designed to allow some complicated controversies to be decided in a single lawsuit. See, Advisory Committee Note on 1963 Amendment to Rule 4(f); Coleman, supra at 252; Pierce, supra at 66, 67. Cf., Vestal, Expanding the Jurisdictional Reach of the Federal Courts: The 1963 Changes in Federal Rule 4, 38 N.Y.U.L.Rev. 1053, 1063 n. 59 (1963). Most courts which have considered the 100-mile provision of Rule 4(f) have applied some form of “minimum contacts” standard in determining an out-of-state party’s amenability to suit. Some courts have tested amenability by the jurisdictional law of the state in which service was made. See, e. g., Coleman, supra at 252-253; Spearing, supra at 771. Cf., McGonigle, supra at 63 n. 6. Other courts have held that a party served in a non-forum state should be amenable to suit if, considering its activities within the 100-mile “bulge” area, it would have been amenable to the forum state’s jurisdiction had the forum state embraced the “bulge” area and exerted jurisdiction over the party to the allowable constitutional limit. See," }, { "docid": "1028558", "title": "", "text": "the few cases that erroneously construed Fourco Glass Co. differently. Such cases do not state the law. . Judge Lord cited Kaeppler v. James H. Matthews & Co., (E.D.Pa.1960) 180 F.Supp. 691, and Goldlawr, Inc. v. Shubert, (E.D.Pa.1958) 169 F.Supp. 677, from his own district as examples of the few cases which held that Fourco Glass Co. affected venue outside the patent field. Lipp v. National Screen Service Corp., (E.D.Pa.1950) 95 F.Supp. 66, was cited as one of the many pre-Fourco Glass Co. cases which was “resurrected” by Pure Oil Co. . The present language of Rule 4(d) (7) came into the Federal Rules by way of the 1963 amendments. The Notes of the Advisory Committee on Rules in regard to subdivision (d) (7) stated: “Subdivision (d) (7) * * *. An important and growing class of State statutes base personal jurisdiction over nonresidents on the doing of acts or on other contacts within the State, and permit notice to be given the defendant outside the State without any requirement of service on a local State official. See, e. g. Ill.Ann.Stat., c. 110, §§ 16, 17 (Smith-Hurd 1956); Wis.Stat. § 262.06 (1959). This service, employed in original Federal actions pursuant to paragraph (7), has also been held proper. [Citing cases]. It has also been held that the clause of paragraph (7) which permits service ‘in the manner prescribed by the law of the state,’ etc., is not limited by subdivision (c) requiring that service of all process be made by certain designated persons. [Citing cases].” [28 U.S.C.A., Rule 4, pocket part]. In regard to subdivision (e) the Notes stated “The second sentence, added by amendment, expressly allows resort in original Federal actions to the procedures provided by State law for effecting service on non-resident parties (as well as on domiciliaries not found within the State). See, as illustrative, the discussion under amended subdivision (d) (7) of service pursuant to State nonresident motorist statutes and other comparable State statutes.” [Ibid], And “if the circumstances of a particular case satisfy the applicable Federal law (first sentence of Rule 4(e), as amended) and" }, { "docid": "23029420", "title": "", "text": "A well-known example of service under Rule 4(f)(2)(A) is “substituted service in Italy by delivery to the concierge of the building where the person to be served lives, as long, as the method of service is likely to give the actual notice required by United States due process concepts.” Gary N. Horlick, A Practical Guide to Service of United States Process Abroad, 14 Int’l Law. 637, 640 (1980) (interpreting previous Rule 4(i)(l)(A) (1963)). Consistent with this example, courts have applied Rule 4(f)(2)(A) to approve personal service carried out in accordance with foreign law. See, e.g., Supra Medical Corp. v. McGonigle, 955 F.Supp. 374, 383-84 (E.D.Pa.1997); Cosmetech International, LLC v. Der Kwei Enterprise, 943 F.Supp. 311, 316 (S.D.N.Y.1996). Another reason to read Rule 4(f)(2)(A) not to authorize service by international mail is the explicit mention of international registered mail in Rule 4(f)(2)(C)(ii), considered above, and the absence of any such mention in Rule 4(f)(2)(A). Indeed, the Advisory Committee Note to Rule 4(i)(l)(D), Rule 4(f)(2)(C)(ii)’s nearly identical predecessor, stated that “service by mail is proper only when it is addressed to the party to be served and a form of mail requiring a signed receipt is used.” Fed. R.Civ.P. 4(i)(l)(D) (1963) Advisory Committee Note (emphasis added). A further reason to read Rule 4(f)(2)(A) not to authorize service on foreign defendants by international mail to England— and, in particular, by ordinary international first class mail — is found in an exchange between the British government and the United States Department of State in 1991, in which the British objected to a then-proposed revision to Federal Rule of Civil Procedure 4. See 127 F.R.D. 266-84 (1989); 146 F.R.D. 515-16 (1992). As amended, this proposal eventually became what is now Rule 4(d), authorizing a plaintiff to request a waiver of service. Current Rule 4(d) allows a plaintiff to send a summons and complaint by ordinary first class mail, with a request for waiver of service. If the defendant agrees to waive service, the defendant’s waiver has the same effect as actual service. Waiver of service under Rule 4(d) is valid for both domestic and foreign" } ]

[ { "docid": "3545563", "title": "", "text": "accept that there is no basis in the law for attacking the award has come at a cost to the party with whom Harbert entered into the arbitration agreement and to the judicial system. In litigating this case without good basis through the district court and now through this Court, Harbert has deprived Hercules and the judicial system itself of the principal benefits of arbitration. Instead of costing less, the resolution of this dispute has cost more than it would have had there been no arbitration agreement. Instead of being decided sooner, it has taken longer than it would have to decide the matter without arbitration. Instead of being resolved outside the courts, this dispute has required the time and effort of the district court and this Court. When a party who loses an arbitration award assumes a never-say-die attitude and drags the dispute through the court system without an objectively reasonable belief it will prevail, the promise of arbitration is broken. Arbitration’s allure is dependent upon the arbitrator being the last decision maker in all but the most unusual cases. The more cases there are, like this one, in which the arbitrator is only the first stop along the way, the less arbitration there will be. If arbitration is to be a meaningful alternative to litigation, the parties must be able to trust that the arbitrator’s decision will be honored sooner instead of later. Courts cannot prevent parties from trying to convert arbitration losses into court victories, but it may be that we can and should insist that if a party on the short end of an arbitration award attacks that award in court without any real legal basis for doing so, that party should pay sanctions. A realistic threat of sanctions may discourage baseless litigation over arbitration awards and help fulfill the purposes of the pro-arbitration policy contained in the FAA. It is an idea worth considering. We have considered ordering Harbert and its counsel to show cause why sanctions should not be imposed in this case, but have decided against doing so. That decision is the product" } ]

[ { "docid": "20499185", "title": "", "text": "to Annul or Suspend the Arbitration Award DRC has established that neither the Republic nor FHIS in fact filed an action in Honduras to annul or suspend the arbitration award rendered against FHIS. See Stay Brief at 15-16, 22-23; see also DRC Supp. Reply at 5-6. The Republic previously stated in filings with Case l:10-cv-00003-PLF Document 100 Filed 06/11/12 Page 7 of 12 the Court that an application for setting aside or suspension of the .award had been filed in Honduras. See, e.g., Respondent’s Mot. to Stay at 15, May 14, 2010 [Dkt. No. 11] (“Under the Conventions, a district court may be acting improvidently by enforcing an award prior to the completion of the foreign proceedings where a parallel action to set aside or modify an award is proceeding in a country of primary jurisdiction, like the prior Honduras action in the case at bar.”) (quotations omitted) (emphasis added); Respondent’s Prelim. Resp. to Pet. to Confirm Arbitration Award at 25, May 14, 2010 [Dkt. No. 13] (“The Court should refuse to confirm the Arbitration Award pursuant to ... Article 6 because an application for the setting aside or suspension of the award has been made to a competent authority.”) (emphasis added); Reply in Support of Respondent’s Mot. to Stay at 3, July 27, 2010 [Dkt. No. 33] (“A district court may be acting improvidently by enforcing an award prior to the completion of the foreign proceedings where a parallel action to set aside or modify an award is proceeding in a country of primary jurisdiction, like the prior Honduras action.”) (quotations omitted) (emphasis added); see also Stay Brief at 23 n.57. Those statements are inaccurate and misleading. Despite its earlier inaccurate and misleading statements to the contrary, the Republic itself now appears to admit that neither it nor FHIS filed any such action to set aside or modify the arbitration award in Honduras. See Stay Opp. at 8. Rather, the Republic contends that “FHIS is requesting refusal of recognition and enforcement of the award in the Honduran action.” Id.; see id. at 17 (“There is ... no need for" }, { "docid": "20499184", "title": "", "text": "at least as they are susceptible of prevision and description,” and “an order which is to continue by its terms for an immoderate stretch of time is not to be upheld as moderate because conceivably the court that made it may be persuaded at a later time to undo what it has done.” Id. at 257, 57 S.Ct. 163. Underlying the Court’s analysis was a recognition that “[o]nly in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both.” Id. at 255, 57 S.Ct. 163. BSDL, 668 F.3d- at 731-32 (alteration in original) Under the court of appeals’ decision in BSDL, the Court concludes (1) that it has no authority to stay this case under Article VI of the Inter-American Convention; and (2) that the Republic of Honduras has failed to meet its burden of justifying any pressing need in favor of a stay. Therefore, the stay in this case must be vacated. A. Action to Annul or Suspend the Arbitration Award DRC has established that neither the Republic nor FHIS in fact filed an action in Honduras to annul or suspend the arbitration award rendered against FHIS. See Stay Brief at 15-16, 22-23; see also DRC Supp. Reply at 5-6. The Republic previously stated in filings with Case l:10-cv-00003-PLF Document 100 Filed 06/11/12 Page 7 of 12 the Court that an application for setting aside or suspension of the .award had been filed in Honduras. See, e.g., Respondent’s Mot. to Stay at 15, May 14, 2010 [Dkt. No. 11] (“Under the Conventions, a district court may be acting improvidently by enforcing an award prior to the completion of the foreign proceedings where a parallel action to set aside or modify an award is proceeding in a country of primary jurisdiction, like the prior Honduras action in the case at bar.”) (quotations omitted) (emphasis added); Respondent’s Prelim. Resp. to Pet. to Confirm Arbitration Award at 25, May 14, 2010 [Dkt. No. 13] (“The Court should refuse to confirm the Arbitration" }, { "docid": "1782088", "title": "", "text": "that the trial court erred in refusing to enforce the award, because it had been set aside by the Nigerian court on grounds that would have been invalid under U.S. law if presented in an American court. The appellate court rejected this argument and affirmed the trial court’s decision not to recognize the award, noting that the parties “contracted in Nigeria that their disputes would be arbitrated under the laws of Nigeria.” Id. at 197. The court also remarked on the undesirable consequences that would likely follow from adoption of Baker Marine’s argument: [A]s a practical matter, mechanical application of domestic arbitral law to foreign awards under the Convention would seriously undermine finality and regularly produce conflicting judgments. If a party whose arbitration award has been vacated at the site of the award can automatically obtain enforcement of the awards under the domestic laws of other nations, a losing party will have every reason to pursue its adversary “with enforcement actions from country to country until a court is found, if any, which grants the enforcement.” Id. at 197 n. 2 (quoting Albert JaN van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judioial Interpretation 355 (1981)). The same principles and concerns govern here, where appellants seek to enforce an arbitration award that has been vacated by Colombia’s Consejo de Estado. For us to endorse what appellants seek would seriously undermine a principal precept of the New York Convention: an arbitration award does not exist to be enforced in other Contracting States if it has been lawfully “set aside” by a competent authority in the State in which the award was made. This principle controls the disposition of this case. D. Considerations of “Public Policy” Appellants argue that courts in the United States “have discretion under the Convention to enforce an award despite annulment in another country,” Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas, 335 F.3d 357, 369 (5th Cir.2003), because Article V(l)(e) merely says that “[rjecognition and enforcement may be refused” if the award has been set aside by a competent authority in" }, { "docid": "13781060", "title": "", "text": "(April 2005)(examin-ing circuit split and urging adoption of the Fourth Circuit's view that the one year period is not a statute of limitations). As the court suggested to the parties earlier, the dismissal of MTA’s petition to enforce the first arbitration award is of no moment. First, as mentioned infra n. 6, MTA now takes the position that neither the first nor the second arbitration panel had adjudicatory jurisdiction over the parties' dispute. Thus, MTA effectively seeks by that argument to withdraw its petition to enforce the first arbitration award. Second, even without court action on the first arbitration award, that award is a fait accompli, and whether the court vacates or confirms it, there remains the real dispute over the enforceability of the second arbitration award. In other words, it is clear that MTA filed its belated petition to enforce the first arbitration award merely in an attempt to shore up its arguments in support of its petition to vacate the second arbitration award. In any event, as mentioned in text, this court shall dismiss without prejudice MTA’s petition to enforce the first arbitration award in view of the possibility that MTA could bring an action at law on the \"same claim.” See Photopaint Technologies, LLC, 335 F.3d at 159 (acknowledging that an action at law is a valid alternative means of enforcing an arbi-tral award). . For the first time throughout the proceedings, in its opening brief filed in this court, MTA asserted a defense that it had failed to raise before the arbitration panel, namely, sovereign immunity, based on an alleged statutory \"evolution” over several decades in Maryland law, as set forth in myriad provisions found in Maryland state procurement law. In short, MTA now claims that the arbitrators \"exceeded their powers” because they should have recognized that the Agreement between MTA and AMTRAK was a \"state procurement contract” ( and thus called for the application of state administrative and judicial review proceedings rather than arbitration), and should have refused to arbitrate the parties' dispute, notwithstanding the plain language of the arbitration clause set forth in the" }, { "docid": "23279981", "title": "", "text": "proceeding, and the country whose arbitral procedural law governed that • proceeding. Using this reasoning, Pertamina suggests that both Switzerland (the host country) and Indonesia (the country of governing law) have primary jurisdiction over, the arbitration in this case. Pertamina correctly observes that the Convention provides two tests for determining which country has primary jurisdiction over an arbitration award: a country in which an award is made, and a country under the law of which an award is made. The New York Convention suggests the potential for more than one country of primary jurisdiction. Courts and scholars have noted as much. Per-tamina cites one such scholar as support for its position: [Ajmbiguity is derived from the fact that the formula does not indicate whether the party seeking the annulment of the award must choose between the court at the seat of the arbitration and the one located in the country under the law of which the award is made — if the two are distinct — or whether it may seek annulment jointly or alternatively before both courts.... Article V(l)(e) of the New York Convention could [ ] be construed as referring to the courts of only one country while giving the party seeking the annulment the possibility to choose between the two countries should the two be distinct. Although an arbitration agreement may make more than one country eligible for primary jurisdiction under the New York Convention, the predominant view is that the Convention permits only one in any given case. “[Mjany commentators and foreign courts have concluded that an action to set aside an award can be brought only under the domestic law of the arbi-tral forum.” Pertamina’s expert on international arbitration filed a report in the district court, stating that “there can be only one country in which the courts have jurisdiction over an annulment.” In its motion to the district court to set aside judgment under Rule 60(b), Pertamina conceded that “[a] primary jurisdiction has exclusive authority to nullify an award on the basis of its own arbitration law.” Such “exclusive” primary jurisdiction in the courts" }, { "docid": "20499186", "title": "", "text": "Award pursuant to ... Article 6 because an application for the setting aside or suspension of the award has been made to a competent authority.”) (emphasis added); Reply in Support of Respondent’s Mot. to Stay at 3, July 27, 2010 [Dkt. No. 33] (“A district court may be acting improvidently by enforcing an award prior to the completion of the foreign proceedings where a parallel action to set aside or modify an award is proceeding in a country of primary jurisdiction, like the prior Honduras action.”) (quotations omitted) (emphasis added); see also Stay Brief at 23 n.57. Those statements are inaccurate and misleading. Despite its earlier inaccurate and misleading statements to the contrary, the Republic itself now appears to admit that neither it nor FHIS filed any such action to set aside or modify the arbitration award in Honduras. See Stay Opp. at 8. Rather, the Republic contends that “FHIS is requesting refusal of recognition and enforcement of the award in the Honduran action.” Id.; see id. at 17 (“There is ... no need for FHIS to move to vacate the award in Honduras, because non-recognition and non-enforcement of the award accomplishes exactly the same thing.”) (emphasis added); see also Republic Supp. Opp. at 3 (stating only that FHIS “filed an opposition to DRC’s application” for recognition and enforcement of the arbitration award). A request for refusal of recognition and enforcement of an arbitration award plainly is different from a request to annul or suspend an arbitration award. See TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 935-37 (D.C.Cir.2007). The former can be done in any jurisdiction in which the award is attempted to be enforced, but an action to annul or suspend an award must be filed in the seat of arbitration and must comply with the procedural laws of the seat of arbitration. See id. at 937. And only a decision to annul or suspend an award can have a preclusive effect on a district court’s disposition of a petition to enforce an award under the FAA and the Inter-American or New York Convention. See id. at" }, { "docid": "2304369", "title": "", "text": "case,” suggesting that it was indeed relinquishing jurisdiction. No doubt the judge hoped that on remand the arbitrator would render an award that satisfied both parties or, more likely, would be solid enough to discourage a judicial challenge. On remand, the arbitrator grudgingly ruled in favor of Jays, emphasizing that he disagreed with the district court’s decision but was bowing to what he thought its implicit command to rule for the company. Naturally at this point the union wanted to get appellate review of the district court’s initial decision, the decision vacating the arbitral award in the union’s favor. It could have gotten this by filing a proceeding in the district court to set aside the second arbitral award on the ground that the court had erred in setting aside the first one. If the court was not persuaded and ruled in favor of Jays, the union could appeal to us and the appeal would bring up for review all nonmoot interlocutory orders issued by the district court, Lauer v. Apfel, 169 F.3d 489, 492 (7th Cir.1999); LeBlang Motors, Ltd. v. Subaru of America, Inc., 148 F.3d 680, 689 (7th Cir.1998); Librizzi v. Children’s Memorial Medical Center, 134 F.3d 1302, 1305-06 (7th Cir.1998); Keefe v. Prudential Property & Casualty Ins. Co., 203 F.3d 218, 226 (3d Cir.2000), including the order vacating the first arbi-tral award. Granted, this is a slightly tricky point, since in our hypothetical example of the union’s filing a fresh proceeding to set aside the award made by the arbitrator on remand we described as “interlocutory”' an order technically issued in a prior case. But the usage is correct. When a case is appealed (here to the district court from the arbitrator rather than from the district court to this court) following a remand, there are two appellate proceedings but only one underlying litigation, and any interlocutory order in that litigation, even if it preceded the first appeal, is (within the limits of the doctrine of law of the case) open to review on the second appeal,- unless it has become moot in the interim. Shearson Loeb" }, { "docid": "22947689", "title": "", "text": "of an expert who had been previously retained by IRI and who provided opinions against Barnard and Burk’s interests; 3. Whether the district court abused its discretion in determining that the arbitration awards were not “arbitrary and capricious;” and 4. Whether the conversion rate and costs awards should be vacated along with the principal award. On cross-appeal, MAN GHH challenges the district court’s refusal to award to MAN GHH prejudgment interest from the date of the last arbitral award through the date of the district court’s judgment confirming the arbitral award. MAN GHH also brings a separate appeal challenging the district court’s imposition of Rule 11 sanctions. II. As a threshold matter, we must determine the source of our jurisdiction. We must inquire sua sponte into the source of our jurisdiction whenever it might be in question. See Miscott Corp. v. Zaremba Walden Co., 848 F.2d 1190, 1192 (11th Cir. 1988). The district court proceeded in the belief that its jurisdiction was grounded in diversity, and that its treatment of the arbi tral proceedings was therefore controlled by Chapter 1 of the Federal Arbitration Act (“FAA”), 9 U.S.C. §§■ 1-16 (1994), which covers domestic arbitral proceedings. We conclude that the district court was in error, and hold that the case is controlled by Chapter 2 of the FAA, 9 U.S.C. §§ 201-208, which covers international arbitral proceedings. The instant case presents an issue of first impression in this court: Do the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”), and thus the provisions of Chapter 2 of the FAA, govern an arbitral award granted to a foreign corporation by an arbitral panel sitting in the United States and applying American federal or state law? We hold that they do. The New York Convention was drafted in 1958 under the auspices of the United Nations. See Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature June 10, 1958, 21 U.S.T. 2517, T.I.A.S. No. 6997, 330 U.N.T.S. 3. The United States acceded to the treaty in 1970, and Chapter 2" }, { "docid": "23279936", "title": "", "text": "court’s decision confirming an arbitration award is reviewed under the same standard as any other district court decision. This court reviews a district court’s grant of summary judgment de novo. A. The New York Convention The New York Convention provides a carefully structured framework for the review and enforcement of international arbitral awards. Only a court in a country with primary jurisdiction over an arbitral award may annul that award. Courts in other countries have secondary jurisdiction; a court in a country with secondary jurisdiction is limited to deciding whether the award may be enforced in that country. The Convention “mandates very different regimes for the review of arbitral awards (1) in the [countries] in which, or under the law of which, the award was made, and (2) in other [countries] where recognition and enforcement are sought.” Under the Convention, “the country in which, or under the [arbitration] law of which, [an] award was made” is said to have primary jurisdiction over the arbitration award. All other signatory states are secondary jurisdictions, in which parties can only contest whether that state should enforce the arbi-tral award. It is clear that the district court had secondary jurisdiction and considered only whether to enforce the Award in the United States. Article V enumerates specific grounds on which a court with secondary jurisdiction may refuse enforcement. In contrast to the limited authority of second ary-jurisdiction courts to review an arbi-tral award, courts of primary jurisdiction, usually the courts of the country of the arbitral situs, have much broader discretion to set aside an award. While courts of a primary jurisdiction country may apply their own domestic law in evaluating a request to annul or set aside an arbitral award, courts in countries of secondary jurisdiction may refuse enforcement only on the grounds specified in Article V. The New York Convention and the implementing legislation, Chapter 2 of the Federal Arbitration Act (“FAA”), provide that a secondary jurisdiction court must enforce an arbitration award unless it finds one of the grounds for refusal or deferral of recognition or enforcement specified in the Convention. The" }, { "docid": "3555477", "title": "", "text": "found in the FAA for vacating an award, see 9 U.S.C. § 10, or modifying it, see id. § 11. The implied grounds for vacatur recognized by the FAA are found “where the arbitrator’s award is in manifest disregard of the terms of the agreement, or where the award is in manifest disregard of the law.” Yusuf, 126 F.3d at 23 (citations and internal quotation marks omitted). And in those particular circumstances, the principles of domestic American law for refusing to enforce an award apply, notwithstanding the fact that a petition to enforce the award falls under the Convention. However, where (as in the case at bar) an arbitral award is made in one State adhering to the Convention and sought to be enforced in another adhering State, the grounds for resisting the award are limited to those found in Article V of the Convention. In Yusuf the Second Circuit explains the differehce: In sum, we conclude that the Convention mandates very different regimes for the review of arbitral awards (1) in the state in which, or under the law of which, the award was made, and (2) in other states where recognition and enforcement are sought. The Convention specifically contemplates that the state in which, or under the law of which, the award is made, will be free to set aside or modify an award in accordance with its domestic arbitral law and its full panoply of express and implied grounds for relief. See Convention art. V(l)(e). However, the Convention is equally clear that when an action for enforcement is brought in a foreign state, the state may refuse to enforce the award only on the grounds explicitly set forth in Article V of the Convention. 126 F.3d at 23. The Second Circuit’s more recent decision in Baker Marine illustrates the “very different regime[ ] for the review of arbi-tral awards” when the award is rendered in one State and sought to be enforced in another. Nigerian and American companies entered into two contracts to provide' barges for use in servicing Nigeria’s oil industry. The contracts provided for arbitration" }, { "docid": "1782089", "title": "", "text": "enforcement.” Id. at 197 n. 2 (quoting Albert JaN van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judioial Interpretation 355 (1981)). The same principles and concerns govern here, where appellants seek to enforce an arbitration award that has been vacated by Colombia’s Consejo de Estado. For us to endorse what appellants seek would seriously undermine a principal precept of the New York Convention: an arbitration award does not exist to be enforced in other Contracting States if it has been lawfully “set aside” by a competent authority in the State in which the award was made. This principle controls the disposition of this case. D. Considerations of “Public Policy” Appellants argue that courts in the United States “have discretion under the Convention to enforce an award despite annulment in another country,” Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas, 335 F.3d 357, 369 (5th Cir.2003), because Article V(l)(e) merely says that “[rjecognition and enforcement may be refused” if the award has been set aside by a competent authority in the primary state, New York Convention art. V(l)(e) (emphasis added). More particularly, appellants contend that “a state is not required to give effect to foreign judicial proceedings grounded on policies which do violence to its own fundamental interests.” Appellants’ Br. at 22 (quoting Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 931 (D.C.Cir.1984)). Appellants’ characterizations of the applicable law are understated and thus misguided. Appellants concede that Baker Marine is not incorrect in its holding that “it is insufficient to enforce an award solely because a foreign court’s grounds for nullifying the award would not be recognized under domestic United States law.” Appellants’ Br. at 24. Rather, appellants allege that the District Court should have exercised its discretion to enforce the arbi tration award in this case, because, inter alia, “the Council of State’s decision was contrary to both domestic Colombian and international law; recognition of that decision would frustrate clearly expressed international and United States policy; and the process leading to the nullification decision demonstrated the Colombian government’s determination to deny" }, { "docid": "1782094", "title": "", "text": "policy,” 191 F.3d at 197 n. 3, thus at least implicitly endorsing a “public policy” gloss on Article V(l)(e). However, the decision does not say that a court in the United States has unfettered discretion to impose its own considerations of public policy in reviewing the judgment of a court in a primary State vacating an arbitration award based upon the foreign court’s construction of the law of the primary State. Rather, as appellees argue, Baker Marine is consistent with the view that, “[w]hen a competent foreign court has nullified a foreign arbitration award, United States courts should not go behind that decision absent extraordinary circumstances not present in this case.” Appellees’ Br. at 12. In applying Article V(l)(e) of the New York Convention, we must be very careful in weighing notions of “public policy” in determining whether to credit the judgment of a court in the primary State vacating an arbitration award. The test of public policy cannot be simply whether the courts of a secondary State would set aside an arbitration award if the award had been made and enforcement had been sought within its jurisdiction. As noted above, the Convention contemplates that different Contracting States may have different grounds for setting aside arbitration awards. Therefore, it is unsurprising that the courts have carefully limited the occasions when a foreign judgment is ignored on grounds of public policy. A judgment is unenforceable as against public policy to the extent that it is “repugnant to fundamental notions of what is decent and just in the State where enforcement is sought.” Tahan v. Hodgson, 662 F.2d 862, 864 (D.C.Cir.1981) (quoting Rest.2d Conflict of Laws § 117, comment c (1971)). The standard is high, and infrequently met. As one court wrote, “[o]nly in clear-cut cases ought it to avail defendant.” Tahan, 662 F.2d at 866 n. 17 (citing von Mehren & Trautman, Recognition of Foreign Adjudications: A Survey and a Suggested Approach, 81 Haev. L. Rev. 1601, 1670 (1968); Paulsen & Sovern, “Public Policy” in the Conflict of Laws, 56 Colum. L. Rev. 969, 980-81, 1015-16 (1956)). In the classic formulation," }, { "docid": "17554660", "title": "", "text": "on the ground that the arbitrator may have made an error of law or fact. See National Wrecking, 990 F.2d at 960; Hewlett-Packard, Inc. v. Berg, 867 F.Supp. 1126, 1130-32 (D.Mass.1994) (same rule for foreign arbitration awards under the Convention), vacated and remanded on other grounds, 61 F.3d 101 (1st Cir.1995). Thus, we agree with the district court that enforcement of the arbitration award would not violate public policy. D. District Court’s Decision not to Adjourn Proceedings A court has discretion to adjourn enforcement proceedings where an application has been made in the originating country to have the arbitral award set aside or suspended. Article VI of the Convention provides If an application for the setting aside or suspension of the award has been made to a competent authority [of the country in which, or under the law of which, that award was made], the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security. Maiellano urges that proceedings in the district court should have been adjourned or suspended until his appeal in Italy was decided. The district court denied Maiellano’s application to adjourn the enforcement proceedings, finding that the confirmed award was immediately enforceable under Italian law notwithstanding the pending appeal and that the defendant had not sought a stay of enforcement in the Italian courts, and concluding that adjournment would thwart arbitration’s twin goals of “settling disputes efficiently and avoiding long and expensive litigation.” See Folkways Music Publishers, Inc. v. Weiss, 989 F.2d 108, 111 (2d Cir.1993). The circumstances under which a district court should adjourn enforcement proceedings to await the outcome of parallel proceedings in the originating forum have received little attention from circuit courts. See Spier, 663 F.Supp. at 874; Strub, Resisting Enforcement, supra, at 1053. As a preliminary matter, no circuit court has enunciated the standard for reviewing a district court’s refusal to adjourn. Only one appellate" }, { "docid": "10857857", "title": "", "text": "(2d Cir.1997)). In Yusuf, the Court of Appeals for the Second Circuit concluded that there are “very different regimes for the review of arbitral awards (1) in the [country] in which, or under the law of which, the award was made, and (2) in other [countries] where recognition and enforcement are sought.” 126 F.3d at 23. After conducting a thorough analysis of both regimes, it concluded that the FAA’s vacatur standards applied to the Convention award it was reviewing because the arbitration award was made in the United States. Id. We previously adopted the second portion of Yusuf in Admart AG, “ ‘holding that, in an action to confirm an award rendered in, or under the law of, a foreign jurisdiction, the grounds for relief enumerated in Article V of the Convention are the only grounds available for setting aside an arbitral award.’ ” 457 F.3d at 308 (quoting Yusuf, 126 F.3d at 20). We therefore looked only to the limited Article V grounds when reviewing a “foreign” Convention award. But unlike Admart AG, in this case the Convention award was rendered in the United States. Therefore, we must decide whether to adopt the first portion of the Yusuf decision and its articulation of the available grounds for vacating a Convention award rendered in the United States. The Yusuf Court held that, “under Article V(l)(e) [of the Convention], the courts of the United States are authorized to apply United States procedural arbitral law, i.e., the [domestic] FAA, to nondomestic [Convention] awards rendered in the United States.” 126 F.3d at 19-20; see also Convention Art. V(l)(e) (“Recognition and enforcement of the award may be refused ... [if the award] has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.”). Accordingly, the Yusuf Court concluded, “[t]he Convention specifically contemplates that the [country] in which, or under the law of which, the award is made, will be free to set aside or modify an award in accordance with its ■ domestic arbitral law and its full panoply of" }, { "docid": "16244532", "title": "", "text": "is undisputed that IDI has made such an application in India. Professor Aksen has commented: Under Article VI it is left to the court or other competent authority from which enforcement is sought to decide what to do if an application to set aside or suspend the award has been made to a court or other competent authority in the country in which the award was made. G. Aksen, supra, at 11. We believe it is important in making this decision to consider the purpose of the Convention. The primary thrust of the Convention is to make enforcement of arbitral awards more simple by liberalizing enforcement procedures, limiting defenses, and placing the burden of proof on the party opposing enforcement. Parsons & Whitte-more, supra, 508 F.2d at 973; L. Quigley, “Convention on Foreign Arbitral Awards,” 58 A.B.A.J. 821, 824 (1972). The Supreme Court discussed at some length the goal of the Convention in Scherk v. Alberto-Culver, supra, 417 U.S. at 520 n.15, 94 S.Ct. at 2457, n.15: . The goal of the Convention, and the principal purpose underlying American adoption and implementation of it, was to encourage the recognition and enforcement of commercial arbitration agreements in international contracts and to verify the standards by which agreements to arbitrate are observed and arbi-tral awards are enforced in the signatory countries. The Court also observed: A parochial refusal by the courts of one country to enforce an international arbitration agreement would not only frustrate these purposes, but would invite unseemly and mutually destructive jockeying by the parties to secure tactical litigation advantages. Id. at 516-17, 94 S.Ct. at 2455-2456. The same would be true of a parochial refusal to enforce an arbitral award under the Convention. We are not unmindful of the fact that IDI has been unable to collect in India its judgment on the Methanol Award. However, to allow that fact to influence our decision on enforcement of the Nitrophosp- hate Award would be “parochial” indeed. It is clear, as even IDI has conceded, that the Indian courts have enforced the Methanol Award and have required FCI to post security," }, { "docid": "16244527", "title": "", "text": "parties, a court of equity will not set it aside from error, either in law or fact. A contrary course would be a substitution of the judgment of the chancellor in place of the judges chosen by the parties, and would make an award the commencement, not the end, of litigation. Burchell v. Marsh, 58 U.S. (17 How.) 344, 349, 15 L.Ed. 96 (1854). In the present case the award is within the submission to the arbitrators, there were numerous hearings, and we are impressed with the thoroughness and scholarship of the arbitrators’ decision. The Court of Appeals for the Second Circuit has stated: When arbitrators explain their conclusions ... in terms that offer even a barely colorable justification for the outcome reached, confirmation of the award cannot be prevented by litigants who merely argue, however persuasively, for a different result. Andros Compania Maritima, supra, 579 F.2d at 704. We find at least colorable justification for the result reached in the Nitrophosphate Award. In a case very similar to the present one, the Second Circuit affirmed a foreign arbi-tral award which granted damages for loss of production, though the contract excluded such liability. The Court found that Article V(l)(c) of the Convention tracked § 10(d) of the Federal Arbitration Act, 9 U.S.C. § 10(d), and that both sections required a narrow reading. The Court explained: Both provisions basically allow a party to attack an award predicated upon arbitration of a subject matter not within the agreement to submit to arbitration. This defense to enforcement of a foreign award, like the others already discussed, should be construed narrowly. Once again a narrow construction would comport with the enforcement-facilitating thrust of the Convention. In addition, the case law under the similar provision of the Federal Arbitration Act strongly supports a strict reading. Parsons & Whittemore Overseas Co., Inc., supra, 508 F.2d at 976. We note that the provisions of the Federal Arbitration Act are to apply to proceedings under the Convention to the extent that no conflict exists between the two statutes. 9 U.S.C. § 208. We note further that IDI has" }, { "docid": "1782093", "title": "", "text": "287-88. This means that a primary State necessarily may set aside an award on grounds that are not consistent with the laws and policies of a secondary Contracting State. The Convention does not endorse a regime in which secondary States (in determining whether to enforce an award) routinely second-guess the judgment of a court in a primary State, when the court in the primary State has lawfully acted pursuant to “competent authority” to “set aside” an arbitration award made in its country. Appellants go much too far in suggesting that a court in a secondary State is free as it sees fit to ignore the judgment of a court of competent authority in a primary State vacating an arbitration award. It takes much more than a mere assertion that the judgment of the primary State “offends the public policy” of the secondary State to overcome a defense raised under Article V(l)(e). The decision in Baker Marine notes that the “[rjecognition of the [foreign court’s] judgment in [that] case d[id] not conflict with United States public policy,” 191 F.3d at 197 n. 3, thus at least implicitly endorsing a “public policy” gloss on Article V(l)(e). However, the decision does not say that a court in the United States has unfettered discretion to impose its own considerations of public policy in reviewing the judgment of a court in a primary State vacating an arbitration award based upon the foreign court’s construction of the law of the primary State. Rather, as appellees argue, Baker Marine is consistent with the view that, “[w]hen a competent foreign court has nullified a foreign arbitration award, United States courts should not go behind that decision absent extraordinary circumstances not present in this case.” Appellees’ Br. at 12. In applying Article V(l)(e) of the New York Convention, we must be very careful in weighing notions of “public policy” in determining whether to credit the judgment of a court in the primary State vacating an arbitration award. The test of public policy cannot be simply whether the courts of a secondary State would set aside an arbitration award if" }, { "docid": "1782092", "title": "", "text": "Here, Electran-ta preserved its objection that the panel was not proper or authorized by law, promptly raised it in the Colombian courts, and received a definitive ruling by the highest court on this question of law.” Appellees’ Br. at 13 (internal citation omitted). Furthermore, appellants are simply mistaken in suggesting that the Convention policy in favor of enforcement of arbitration awards effectively swallows the command of Article V(l)(e). A judgment whether to recognize or enforce an award that has not been set aside in the State in which it was made is quite different from a judgment whether to disregard the action of a court of competent authority in another State. “The Convention specifically contemplates that the state in which, or under the law of which, the award is made, will be free to set aside or modify an award in accordance with its domestic ar-bitral law and its full panoply of express and implied grounds for relief.” Yusuf Ahmed Alghanim & Sons, 126 F.3d at 23; see also Karaha Bodas II, 364 F.3d at 287-88. This means that a primary State necessarily may set aside an award on grounds that are not consistent with the laws and policies of a secondary Contracting State. The Convention does not endorse a regime in which secondary States (in determining whether to enforce an award) routinely second-guess the judgment of a court in a primary State, when the court in the primary State has lawfully acted pursuant to “competent authority” to “set aside” an arbitration award made in its country. Appellants go much too far in suggesting that a court in a secondary State is free as it sees fit to ignore the judgment of a court of competent authority in a primary State vacating an arbitration award. It takes much more than a mere assertion that the judgment of the primary State “offends the public policy” of the secondary State to overcome a defense raised under Article V(l)(e). The decision in Baker Marine notes that the “[rjecognition of the [foreign court’s] judgment in [that] case d[id] not conflict with United States public" }, { "docid": "3555478", "title": "", "text": "which, or under the law of which, the award was made, and (2) in other states where recognition and enforcement are sought. The Convention specifically contemplates that the state in which, or under the law of which, the award is made, will be free to set aside or modify an award in accordance with its domestic arbitral law and its full panoply of express and implied grounds for relief. See Convention art. V(l)(e). However, the Convention is equally clear that when an action for enforcement is brought in a foreign state, the state may refuse to enforce the award only on the grounds explicitly set forth in Article V of the Convention. 126 F.3d at 23. The Second Circuit’s more recent decision in Baker Marine illustrates the “very different regime[ ] for the review of arbi-tral awards” when the award is rendered in one State and sought to be enforced in another. Nigerian and American companies entered into two contracts to provide' barges for use in servicing Nigeria’s oil industry. The contracts provided for arbitration in Nigeria. Two panels of arbitrators made monetary awards in favor of Baker Marine. Baker Marine sought enforcement of both awards in the Nigerian Federal High Court. The losing parties appealed to the same court to vacate the awards. In that effort they succeeded; the Nigerian court set aside both arbitration awards. Invoking the Convention, Baker Marine then petitioned the Northern District of New York to enforce the awards. Judge McAvoy denied those petitions, reasoning that “under the Convention and principles of comity, it would not be proper to enforce a foreign arbitral award when such an award has been set aside by the Nigerian courts.” 1999 WL 781594 at 2 (internal quotation marks omitted). The Second Circuit affirmed. It cited Yusef for the proposition that where enforcement of an arbitral award is sought in a State other than that where the award was made, “Article V [of the Convention] provides exclusive grounds for setting aside” the award. 1999 WL 781594 at 2. The Nigerian court having set aside the Nigerian arbitration awards, Article V(l)(e)" }, { "docid": "23279937", "title": "", "text": "can only contest whether that state should enforce the arbi-tral award. It is clear that the district court had secondary jurisdiction and considered only whether to enforce the Award in the United States. Article V enumerates specific grounds on which a court with secondary jurisdiction may refuse enforcement. In contrast to the limited authority of second ary-jurisdiction courts to review an arbi-tral award, courts of primary jurisdiction, usually the courts of the country of the arbitral situs, have much broader discretion to set aside an award. While courts of a primary jurisdiction country may apply their own domestic law in evaluating a request to annul or set aside an arbitral award, courts in countries of secondary jurisdiction may refuse enforcement only on the grounds specified in Article V. The New York Convention and the implementing legislation, Chapter 2 of the Federal Arbitration Act (“FAA”), provide that a secondary jurisdiction court must enforce an arbitration award unless it finds one of the grounds for refusal or deferral of recognition or enforcement specified in the Convention. The court may not refuse to enforce an arbitral award solely on the ground that the arbitrator may have made a mistake of law or fact. “Absent extraordinary circumstances, a confirming court is not to reconsider an arbitrator’s findings.” The party defending against enforcement of the arbitral award bears the burden of proof. Defenses to enforcement under the New York Convention are construed narrowly, “to encourage the recognition and enforcement of commercial arbitration agreements in international contracts....” B. The Choice-of-Law Issues In the JOC and ESC, the parties stipulated that “the site of the arbitration shall be Geneva.” The Tribunal concluded that under the arbitration agreements, Swiss procedural law applied as the law of the arbitral forum. From 1998 to April 2002, Pertamina consistently and repeatedly took the position before the Tribunal, the Swiss courts, and the United States district court, that Swiss procedural law applied to the arbitration. In April 2002, after the Swiss court had rejected Perta-mina’s annulment proceeding and the district court had held the Award enforceable in the United States, Pertamina moved" } ]

[ { "docid": "7213914", "title": "", "text": "of 11 U.S.C. §§ 526, 527 and 528 in the first instance, and the applicability of those statutes to attorneys who are licensed to practice law, regulated by the laws of the state wherein they are admitted, and admitted to practice in United States Bankruptcy Courts. These two other issues are jurisdictional and of significant interest to bankruptcy practitioners and should be addressed before reaching the issues raised by the Motion. Simply stated, these issues are: A. If Debtor’s counsel is a “debt relief agency” pursuant to 11 U.S.C. § 101(12A), are the provisions of 11 U.S.C. §§ 526, 527 and 528 unconstitutional as applied to attorneys? B. If 11 U.S.C. §§ 526, 527 and 528 are constitutional, do those sections apply to attorneys who are licensed to practice law, regulated by the laws of the state wherein they are admitted, and admitted to practice in United States Bankruptcy Courts? I. Constitutional Challenges The issue of whether 11 U.S.C. §§ 526, 527 and 528 are constitutional as applied to attorneys has been resolved by the well-reasoned opinion of United States Chief District Judge James M. Rosenbaum of the District of Minnesota in Milavetz v. United States, 355 B.R. 758 (D.Minn.2006). This Court adopts the opinion of Judge Rosenbaum and holds 11 U.S.C. §§ 526, 527 and 528 are unconstitutional as applied to attorneys. However, following the doctrine of constitutional avoidance, this Court will address the other issues raised by the Motion to resolve the issues on other than constitutional grounds, if possible. II. Attorneys and Debt Relief Agencies Judge Rosenbaum pointed out the ambiguity in these statutes which, on the one hand, appear to regulate a lawyer’s practice and, on the other hand, infringe on the State’s traditional role of regulating attorneys. For this reason, Judge Rosen-baum found sections 526, 527 and 528 of the Bankruptcy Code do not apply to attorneys. I agree. So did United States Bankruptcy Judge Lamar W. Davis, Jr. of the Southern District of Georgia in In re Attorneys at Law and Debt Relief Agencies, 332 B.R. 66 (Bankr.S.D.Ga.2005). This issue has further ramifications. The" } ]

[ { "docid": "3323973", "title": "", "text": "attorney for the debtor for the period from June 30, 2007 to December 31, 2007. If the application is granted, the dividend being paid on unsecured claims will be reduced from approximately 80% to approximately 55%. . The actual terms used by the statute are \"debt relief agency” to refer to the attorney and \"assisted person” to refer to the consumer debtor. Both of these are terms of art. See § 101(12A) and (3), Bankruptcy Code. Although some courts have held that the restrictions placed by BAPCPA on the advice that a debt relief agency can give are unconstitutional as applied to attorneys, see Hersh v. United States, 347 B.R. 19 (N.D.Tex.2006) and Zelotes v. Martini, 352 B.R. 17 (D.Conn.2006), there can be little doubt that the requirement for a written contract applies to attorneys representing consumer debtors and is constitutional. In re Norman, 2006 WL 3053309, *4 (Bankr.E.D.Va.2006) (stating that debtor’s counsel qualifies as a debt relief agency and thus must comply with the requirements of § 528(a)(1)); but see Milavetz, Gallop & Milavetz P.A. v. United States, 355 B.R. 758 (D.Minn.2006) (holding the advice restrictions of § 528(a) unconstitutional as applied to attorneys and the debt relief agency provisions of BABCPA inapplicable to attorneys). . The court also strikes from the fee agreement the provision that representation of the debtor for other matters in the case (excluding adversary proceedings) \"will require a separate retainer” — if by \"retainer” is meant an up-front payment — since counsel is required to appear at all hearings in the case and may not condition such appearance on payment of fees in advance." }, { "docid": "8248113", "title": "", "text": "consumer debts and whose nonexempt property is valued at less than $150,000, and who thereby meet the definition of \"assisted person.” (Def.’s Local Rule 56(a)(1) Statement ¶ 3.) . Pursuant to Federal Rule of Civil Procedure 25(d), Diana G. Adams, Acting United States Trustee for Region 2, is substituted for Deirdre A. Martini, the former United States Trustee for Region 2. . At the time that this Court issued its Ruling on Defendant's Motion to Dismiss, Hersch and Olsen were the only two district courts that had addressed the constitutionality of 11 U.S.C. § 526(a)(4). Since that time, two other courts have found § 526(a)(4) to be unconstitutional. See Milavetz, 355 B.R. 758; In re Reyes, 361 B.R. at 279. . The “means test” is used to determine whether the presumption that a Chapter 7 filing is abusive should apply. If the filing is determined to be abusive, it is dismissed or converted to a Chapter 11 or 13 filing. 11 U.S.C. § 707(b)(1). Under this test, an abuse of the bankruptcy system is presumed when the amount of the debtor's income, after deduction of certain expenses and other specified amounts, exceeds specified thresholds. 11 U.S.C. § 707(b)(2)(A). . Defendant argues that \"such a conversion may not involve incurring debt,” and if it does not, § 526(a)(4) has no application. Defendant is correct, however, for those instances where such a conversion does involve a loan, § 526(a)(4) would apply. . It is doubtful whether Defendant would prevail with its argument that § 526(a)(4) is an ethical regulation. Nothing in the § 526(a)(4) nor any other part of the section alludes to ethics or purports to be an ethical principle. The section is titled \"Restrictions on debt relief agencies,” and clearly defines and prohibits the giving of certain advice. Although bankruptcy attorneys fall within the definition of \"debt relief agencies,” the provision also applies to non-attorneys. See In re Reyes, 361 B.R. at 279-80. When viewed in its entirety, § 526(a)(4) appears to be a content-based regulation on speech. See Hersh, 347 B.R. at 24 n. 8; Olsen, 350 B.R. at" }, { "docid": "22985020", "title": "", "text": "our examination of the statute must begin “where all such inquiries must begin: with the language of the statute itself.” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989); Stornawaye Fin. Corp. v. Hill (In re Hill), 562 F.3d 29, 32 (1st Cir.2009). If the statute’s language is plain, “ ‘the sole function of the courts — at least where the disposition required by the text is not absurd- — -is to enforce it according to its terms.’ ” Lamie v. United States, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000)); Ron Pair, 489 U.S. at 242, 109 S.Ct. 1026. We thus look first to the specific language at issue, which defines deductible secured debt as amounts that are “scheduled as contractually due to secured creditors in each of the 60 months following the date of the petition.” Unless that language is ambiguous, we consider Congress’s intent only to be certain that the statute’s plain meaning does not lead to “absurd” results. Lamie, 540 U.S. at 534, 124 S.Ct. 1023. A. Statutory Language Although the precedent runs both ways, the vast majority of bankruptcy courts to consider the issue have concluded that the plain language of section 707(b)(2) permits a Chapter 7 debtor to deduct payments on a secured debt even when the debtor plans to surrender the collateral underlying that debt. See, e.g., In re Norwood-Hill, 403 B.R. 905, 910 (Bankr.M. D.Fla.2009); In re Crawley, No. 08-14419-SSM, 2009 WL 902359, at *3 (Bankr.E.D.Va. Feb. 23, 2009); In re Hayes, 376 B.R. 55, 63 (Bankr.D.Mass.2007); In re Hartwick, 359 B.R. 16, 19-20 (Bankr.D.N.H.2007); Randle, 358 B.R. at 363-64; In re Sorrell, 359 B.R. 167, 186 (Bankr.S.D.Ohio 2007); In re Haar, 360 B.R. 759, 766-67 (Bankr.N.D.Ohio 2007); In re Chang, No. 07-50484-ASW, 2007 WL 3034679, at *3 (Bankr.N.D.Cal. Oct. 16, 2007); In re Walker, No. 05-15010-WHD, 2006 WL 1314125, at *4 (Bankr.N.D.Ga. May 1, 2006). But see, e.g.," }, { "docid": "15053122", "title": "", "text": "110(e)(2) (prohibiting bankruptcy petition preparers from providing legal assistance)). The Court, nevertheless, determined that use of the term “assisted person” in the § 101(12A) definition of “debt relief agency” signaled that not all attorneys providing bankruptcy assistance qualified as debt relief agencies. “Assisted person” is statutorily defined as “any person whose debts consist primarily of consumer debts and the value of whose nonexempt property is less than $175,750.” 11 U.S.C. § 101(3). From this definition, “stated in terms of the person’s debts, ... and from the text and structure of the debt-relief-agency provisions in §§ 526, 527, and 528 ..., including § 528’s disclosure requirements,” the Supreme Court deemed it “evident” that §§ 526-528 “govern only professionals who offer bankruptcy-related services to consumer debtors.” Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S.Ct. at 1341. Following this holding, we review plaintiffs’ constitutional challenge to the statutes at issue with the understanding that the only attorneys qualifying as debt relief agencies are those advising consumer debtors contemplating bankruptcy. B. Standing Before undertaking that constitutional review, we consider Milavetz’s effect on plaintiffs’ standing to mount the instant pre-enforcement challenge. Although defendants did not appeal the district court’s rejection of their standing challenge to attorney plaintiffs who did not represent consumer debtors, see Connecticut Bar Ass’n v. United States, 394 B.R. at 279, we remain obliged to ensure that an appeal presents a proper case or controversy, see Daimler Chrysler Corp. v. Cuno, 547 U.S. 332, 340-41, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006); New York Pub. Interest Research Group v. Whitman, 321 F.3d 316, 324-25 (2d Cir.2003). With Milavetz clarifying that §§ 526-528 apply “only [to] professionals who offer bankruptcy-related services to consumer debtors,” 130 S.Ct. at 1341, we are now compelled to conclude that the plaintiff law firm of Brown & Welsh, which represents only creditors, and attorney plaintiff Gerald Roisman, who also does not represent debtors in bankruptcy, lack standing to pursue this case. Neither can demonstrate the requisite “actual and well-founded fear” that the challenged statutes will be enforced against them. American Booksellers v. Dean, 342 F.3d 96," }, { "docid": "15167248", "title": "", "text": "MEMORANDUM DECISION RE: U.S. TRUSTEE’S MOTION TO DISMISS FOR ABUSE PATRICIA C. WILLIAMS, Bankruptcy Judge. THIS MATTER comes before the Court on the U.S. Trustee’s Motion to Dismiss the Chapter 7 for Abuse pursuant to 11 U.S.C. § 707(b). The U.S. Trustee is seeking a finding of abuse under the provisions of both § 707(b)(2), which provides for a statutory presumption of abuse in certain cases, and § 707(b)(3), which pro vides for a finding of abuse when either (a) the debtor has filed the petition in bad faith, or (b) the totality of the circumstances of the debtor’s financial situation demonstrates abuse. ISSUE The U.S. Trustee argues that this case should be dismissed or converted to a Chapter 13 as 11 U.S.C. §§ 707(b)(2) and (b)(3) preclude the granting of relief in this Chapter 7. Pre-BAPCPA, there was a single test set forth in § 707(b) to determine whether the granting of Chapter 7 relief would be a “substantial abuse” of the bankruptcy system. Although the burden of proof remains on the moving party, after the statutory modifications contained in BAPCPA, the standard to be met by the party seeking dismissal of the Chapter 7 under § 707 was lowered from substantial abuse to abuse. In re Siegenberg, 2007 WL 6371956 (Bankr.C.D.Cal.2007); In re Harris, 279 B.R. 254 (9th Cir. BAP 2002). The statute now provides two different tests to determine whether abuse is present. The means test in § 707(b)(2) applies a formulaic approach to determine if a debtor is above or below median income. If found to be above median income, it is presumed to be an abuse to allow the granting of Chapter 7 relief. If no presumption arises as the debtor is below median income, the test for abuse under § 707(b)(3) is applicable. In re Pak, 343 B.R. 239 (Bankr.N.D.Cal.2006); In re Egebjerg, 574 F.3d 1045 (9th Cir.2009). The court in In re Jensen, 407 B.R. 378, 384 (Bankr.C.D.Cal.2009) stated: The Court agrees with those authorities holding that the Means Test is only the first step in determining whether a debt- or’s petition is" }, { "docid": "18522512", "title": "", "text": "post-petition.”). The other line of cases interprets the “unambiguous” language of section 707(b)(2)(A)(iii)(I) to mean that only those expenses that the debtor reasonably expects to be paid during the next sixty months may be appropriately deducted, and that it is inappropriate to deduct from disposable income payments for collateral that will be surrendered. It ... seems that the better construction of “scheduled as contractually due” would consider the debtors’ intention to surrender the collateral and make no future payments to the creditor. This construction would not support deduction of average secured credit payments on debt secured by collateral that the debtor proposes to surrender. This construction is also in keeping with the overall purpose of establishing a formula that will give rise to a meaningful presumption of abuse or not. In re Ray, 362 B.R. 680, 685 (Bankr.D.S.C.2007). See In re Harris, 353 B.R. 304 (Bankr.E.D.Okla.2006); In re Skaggs, 349 B.R. 594 (Bankr.E.D.Mo.2006). Having reviewed the cases cited above, and having considered the unambiguous language of the statute, I believe that those cases adopting the “snapshot” approach correctly interpret the statute. I am reminded that “[t]he Supreme Court and [the Eleventh Circuit] have warned on countless occasions against judges ‘improving’ plain statutory language in order to better carry out what they perceive to be the legislative purposes.” In re Bracewell, 454 F.3d 1234, 1240 (11th Cir.2006) {citing Lamie v. U.S. Trustee, 540 U.S. 526, 538, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004)). Thus, as held by Judge Cristol in In Re Benedetti, I similarly “will allow, for purpose of the means test calculation, a deduction from CMI for amounts that would have been due, but which [Debtors] may not pay, to secured creditors on account of property [they intend] to, and in fact [do] surrender after the petition date.” 372 B.R. at 97. Accordingly, I find the presumption of abuse under 11 U.S.C. § 707(b)(2) has not arisen in this case. THE TOTALITY OF CIRCUMSTANCES AND DISMISSAL The U.S. Trustee also seeks dismissal under 11 U.S.C. § 707(b)(3), arguing that the totality of circumstances of the Debtors’ financial situation demonstrate" }, { "docid": "8274290", "title": "", "text": "such person filing a case under this title....” 11 U.S.C. § 526(a)(4). Section 527 of Title 11 requires attorneys to provide certain notices to a debtor and inform the debtor about how to value certain assets at \"replacement value,” 11 U.S.C. § 527. Finally, to comply with section 528, Geisen-berger must \" 'clearly and conspicuously' use the following statement in ... advertising: 'We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.\"’ 11 U.S.C. § 528(a)(4). It was apparent during oral argument Geisenberger objects most strenuously to this requirement, and Count I of his Complaint attacks it as an unconstitutional restriction on his right to advertise under the First Amendment. In Count II, Geisenberger alleges BAPCPA unconstitutionally restricts his right to practice law in violation of the First Amendment. (This count also appears to raise a Tenth Amendment challenge as well.) Finally, in Count III, Geisenberger challenges BAPCPA on equal protection grounds. . Geisenberger makes this allegation in three separate paragraphs of the Complaint. . The memorandum of law in support of Defendants' Motion to Dismiss addresses the merits of Geisenberger's constitutional claims and only raises the issue of standing in a footnote. At oral argument, the Defendants pursued the same tactic and focused exclusively on the reasons the complained of provisions are constitutional. Counsel for Pennsylvania's Attorney General, though, noted at the end of the Defendants' presentation that on January 12, 2006, one week prior to the date of oral arguments in this matter, a similar case was dismissed on standing grounds. See In re McCartney, 336 B.R. 588 (Bankr.M.D.Ga.2006). . Section 526 sets forth the penalties for violating the debt relief agency provisions of BAPCPA. 11 U.S.C. § 526(c). Geisenber-ger's pleading, though, does not allege he has taken any action that would amount to a violation of these provisions. Thus, there is no as-applied challenge before me. I am also unwilling to construe Geisenberger’s Complaint as a facial constitutional challenge because \"a facial attack, since it requires unconstitutionality in all circumstances, necessarily presumes that the litigant presently before the court would" }, { "docid": "8248114", "title": "", "text": "when the amount of the debtor's income, after deduction of certain expenses and other specified amounts, exceeds specified thresholds. 11 U.S.C. § 707(b)(2)(A). . Defendant argues that \"such a conversion may not involve incurring debt,” and if it does not, § 526(a)(4) has no application. Defendant is correct, however, for those instances where such a conversion does involve a loan, § 526(a)(4) would apply. . It is doubtful whether Defendant would prevail with its argument that § 526(a)(4) is an ethical regulation. Nothing in the § 526(a)(4) nor any other part of the section alludes to ethics or purports to be an ethical principle. The section is titled \"Restrictions on debt relief agencies,” and clearly defines and prohibits the giving of certain advice. Although bankruptcy attorneys fall within the definition of \"debt relief agencies,” the provision also applies to non-attorneys. See In re Reyes, 361 B.R. at 279-80. When viewed in its entirety, § 526(a)(4) appears to be a content-based regulation on speech. See Hersh, 347 B.R. at 24 n. 8; Olsen, 350 B.R. at 915 n. 5; Milavetz, 355 B.R. at 763-64. . The legitimate interests advanced by Defendant include the government's interests in (1) protecting debtors from attorneys who might advise them to engage in abusive practices which could result in a denial of discharge of debts under 11 U.S.C. § 523 or § 727or the denial of a chapter 13 plan under § 1325(a)(7) and (2) avoiding the time and expense of dismissing abusive filings incurred by the court, the creditors and the United States Trustee. (Defs.' Mem. Supp. 7.) .The Court does not need to go so far as to find that the law is unconstitutionally vague and overbroad; it is sufficient to hold that as applied, § 526(a)(4) unconstitutionally prevents attorneys from providing lawful, truthful information to their clients. See Milavetz, 355 B.R. at 765 n. 4." }, { "docid": "4889646", "title": "", "text": "his schedules and other documents; (4) whether the debtor has engaged in “eve of bankruptcy purchases”; (5) whether the debtor was forced into chapter 7 by unforseen or catastrophic events; (6) whether the debtor’s disposable income permits the liquidation of his or her consumer debts with relative ease; (7) whether the debtor enjoys a stable source of future income; (8) whether the debtor is eligible for adjustment of his or her debts through chapter 13 of the Bankruptcy Code; (9) whether there are state remedies with the potential to ease the debtor’s financial predicament; (10) whether there is relief obtainable through private negotiations, and to what degree; (11) whether the debtor’s expenses can be reduced significantly without depriving him of adequate food, clothing, shelter and other necessities; (12) whether the debtor has significant retirement funds, which could be voluntarily devoted in whole or in part to the payment of creditors; (13) whether the debtor is eligible for relief under chapter 11 of the Bankruptcy Code; and (14) whether there is no choice available to the debtor for working out his or her financial problems other than chapter 7, and whether the debtor has explored other alternatives. In re Carlton, 211 B.R. 468 (Bankr. W.D.N.Y.1997), aff'd sub nom., Kornfield v. Schwartz (In re Kornfield), 214 B.R. 705 (W.D.N.Y.), aff'd, In re Konfield, 164 F.3d 778 (2nd Cir.1999). Similar factors have been adopted in other circuits. While the standard for finding cause to dismiss a debtor’s chapter 7 case has been lowered post — BAPCPA, courts still apply the factors enumerated above when deciding motions under § 707(b)(3). See In re Oot, 368 B.R. 662, 2007 WL 1464488 (Bankr.N.D.Ohio 2007) (Amendments to a statute, specifically § 707(b)(3), are not to be construed as abolishing precedent set in prior case law absent a finding that such an alteration is clear from the words and context of the amendment); In re Mitchell, 357 B.R. 142 (Bankr.C.D.Cal. 2006); In re Schoen, 2007 WL 643295 (Bankr.D.Kan.2007); In re Pak, 343 B.R. 239, 241 (Bankr.N.D.Cal.2006); In re Richie, 353 B.R. 569, 576-77 (Bankr.E.D.Wis. 2006). The Court finds" }, { "docid": "21170439", "title": "", "text": "governing debt relief agencies [11 U.S.C. §§ 526, 527 & 528], a court stated: If lawyers are placed within the ambit of § 101(4A), the placement conflicts with § 526(d)(2)(A). The conflict would exist because states would be deprived of their ability “to determine and enforce qualifications for the practice of law.” If BAPCPA’s debt relief agency sections apply to attorneys, it means Congress has taken upon itself the authority to determine the advice attorneys can give their clients and what attorney adver tisements must say, thereby infringing on the state’s traditional role of regulating attorneys. See Leis v. Flynt, 439 U.S. 438, 442, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979) ( “Since the founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the States.”) This view is supported by the doctrine of constitutional avoidance. This doctrine counsels that, in construing a statute for ambiguity, the Court must opt for a construction which avoids grave constitutional questions. Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988). The Court perceives a clear ambiguity in this statute-on one hand it appears to regulate a lawyer’s practice; on the other, such regulation is specifically reserved to the states. As outlined above, these sections would be unconstitutional if applied to attorneys. For these reasons, the Court finds §§ 526, 527 and 528 do not apply to attorneys. Milavetz, Gallop & Milavetz P.A. v. U.S., 355 B.R. 758, 768-69 (D.Minn.2006). Contra Olsen v. Gonzales, 350 B.R. 906 (D.Or.2006). The compelled conclusion is that, absent one of the above exceptions, a court must apply the ordinary meaning of the language as enacted and, thus, adhere to its proper role as a court in our constitutional scheme. Legislative History It is necessary to note that the history of the legislative efforts culminating in the 2005 Act is not the same as the legislative history of the 2005 Act. To the extent legislative history of the 2005 Act can be used to resolve any arguable ambiguity in" }, { "docid": "15053120", "title": "", "text": "they “govern only professionals who offer bankruptcy-related services to consumer debtors,” and, as such, reasonably relate to the government’s interest in preventing deception of consumer debtors contemplating bankruptcy. See Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S.Ct. at 1341. II. Discussion Plaintiffs submit that the district court erred in construing the term “debt relief agency” in 11 U.S.C. § 101(12A) to include attorneys; and in dismissing their constitutional challenges to § 527(a) and (b) and § 528(a)(l)-(2) in their entirety, and to § 528(a)(3)-(4) and (b)(2) to the extent those provisions apply to attorneys advising consumer debtors contemplating bankruptcy. Defendants, in turn, fault the district court for declaring unconstitutional § 526(a)(4)’s prohibition on advice to assume debt, as well as the advertising requirements of § 528(a)(3)-(4) and (b)(2) to the extent those requirements apply to attorneys providing bankruptcy assistance to persons other than consumer debtors. We review constitutional challenges to a federal statute de novo. See United States v. Dhafir, 461 F.3d 211, 215 (2d Cir.2006). A. Attorneys Providing Bankruptcy Assistance to Consumer Debtors Qualify as “Debt Relief Agencies” At its core, plaintiffs’ complaint sought a judicial declaration that the challenged statutes do not apply to attorneys, either because the term “debt relief agency” does not include attorneys, or because, if the term does include attorneys, the statutes violate the Constitution. Plaintiffs’ first argument is now foreclosed by Milavetz, Gallop, & Milavetz, P.A. v. United States, 130 S.Ct. at 1333, which holds that attorneys representing consumer debtors can qualify as debt relief agencies. The Supreme Court observed that the term “debt relief agency” was statutorily defined as “ ‘any person who provides any bankruptcy assistance to an assisted person’ in return for payment.” Id. at 1332 (quoting 11 U.S.C. § 101(12A)). While the statute specifically excludes a variety of persons, attorneys are not among them. See id. In fact, the Court noted that the definition of “bankruptcy assistance” includes a service, “the ‘provision of] legal representation with respect to a case or proceeding,’ § 101(4A),” that “may be provided only by attorneys.” Id. (citing also 11 U.S.C. §" }, { "docid": "8248111", "title": "", "text": "Plaintiff-i.e., barring Defendant from enforcing § 526(a)(4) against him-will provide Plaintiff with complete relief. It is not necessary to make the injunction any broader. For these reasons, and because Plaintiff does not argue in favor of a broader injunction, the Court will enter the following limited injunction: Diana G. Adams, as Acting United States Trustee, Region 2, and any subsequent United States Trustee, Region 2, are hereby permanently enjoined from enforcing 11 U.S.C. § 526(a)(4) against Zenas Zelotes, Esq. This injunction shall remain permanently in force until such time as 11 U.S.C. § 526(a)(4) is amended or modified so as to remove the prohibition on debt relief agencies from “advis[ing'] an assisted person or prospective assisted person to incur more debt in contemplation of such person” filing for bankruptcy. IV. CONCLUSION For the foregoing reasons, Plaintiffs Motion for Summary Judgment [Doc. No. 19] is granted; Defendant’s Motion for Summary Judgment [Doc. No. 21] is denied; and Defendant’s Motion for Reconsideration [Doc. No. 22] is granted, however, the prior ruling is adhered to. SO ORDERED. . “The term 'debt relief agency’ means any person who provides any bankruptcy assistance to an assisted person in return for the payment of money or other valuable consideration, or who is a bankruptcy petition preparer under section 110 [11 USCS § 110].” 11 U.S.C. § 101(12A). Other district courts have held that bankruptcy attorneys fall within the definition of “Debt Relief Agency.” See Olsen v. Gonzales, 350 B.R. 906, 912 (D.Or.2006); Hersh v. United States, 347 B.R. 19, 23 (N.D.Tex.2006); Milavetz, Gallop & Milavetz P.A. v. United States, 355 B.R. 758 (D.Minn.2006); but see In re Reyes, 361 B.R. 276, 280 (Bankr.S.D.Fla.2007) (holding that \"Congress did not intend to include attorneys in the category of 'debt relief agency' ”). Defendant concedes that Plaintiff meets this definition. (Def.’s Local Rule 56(a)(1) Statement ¶ 2.) . “The term 'assisted person’ means any person whose debts consist primarily of consumer debts and the value of whose nonexempt property is less than $150,000.” 11 U.S.C. § 101(3). Defendant concedes that Plaintiff’s clients include individuals whose debts consist primarily of" }, { "docid": "3323972", "title": "", "text": "time. . If the plan is not sufficiently funded to pay the fees without prejudice to creditors, but could be modified — either by increasing plan payments or extending the term of the plan, or both — counsel should communicate with the debtor prior to filing the fee application and determine whether the client is willing and able to amend the plan to provide for the fees. A mere assertion in the application that the plan could be amended to accommodate the additional fees is worthless if the client is unwilling to amend the plan or is unable to make the increased payments required. . See Loe. Bankr.R.2016-l(C)(l) (requiring “that any prejudice to any creditor as the result of an award of additional attorney's fees shall be completely, fully and adequately disclosed to all creditors and parties in interest.''). It would be appropriate, for example, that the notice to creditors state as follows: George Wythe Law Offices, P.C., has filed an application with the court for approval and payment of $5,000.00 in additional compensation as attorney for the debtor for the period from June 30, 2007 to December 31, 2007. If the application is granted, the dividend being paid on unsecured claims will be reduced from approximately 80% to approximately 55%. . The actual terms used by the statute are \"debt relief agency” to refer to the attorney and \"assisted person” to refer to the consumer debtor. Both of these are terms of art. See § 101(12A) and (3), Bankruptcy Code. Although some courts have held that the restrictions placed by BAPCPA on the advice that a debt relief agency can give are unconstitutional as applied to attorneys, see Hersh v. United States, 347 B.R. 19 (N.D.Tex.2006) and Zelotes v. Martini, 352 B.R. 17 (D.Conn.2006), there can be little doubt that the requirement for a written contract applies to attorneys representing consumer debtors and is constitutional. In re Norman, 2006 WL 3053309, *4 (Bankr.E.D.Va.2006) (stating that debtor’s counsel qualifies as a debt relief agency and thus must comply with the requirements of § 528(a)(1)); but see Milavetz, Gallop & Milavetz" }, { "docid": "12202413", "title": "", "text": "Mahoney arose in the context of a motion for summary judgment. The Mahoney court concluded that the mere reporting of credit information about a debtor vel non is not an “act” to collect a discharged debt within the meaning of the statute, unless the evidence shows (or in the context of a summary judgment motion, might show) that there is a linkage between the act of reporting and the collection or recovery of the discharged debt. Id. at 584. Here, of course, the Court is evaluating a motion to dismiss, not a motion for summary judgment, and the Complaint alleges that Chase’s refusal to provide correct and updated information is for the purpose of coercing payment of the discharged debt. At least for the purpose of this motion, the linkage between Chase’s reporting and collection activity may be inferred, as Judge Drain explained in Torres, because Chase may be assumed to know that its refusal to provide correct information adversely affects plaintiffs credit score and ability to obtain new credit. Torres, 367 B.R. at 487. As Judge Drain noted in Torres, “[o]ther courts have had no difficulty recognizing that false or outdated reporting to credit reporting agencies, even without additional collection activity, can constitute an act to extract payment of a debt in violation of section 524(a)(2).” Id. at 486. Such cases include Lohmeyer, 365 B.R. 746; Carriere v. Fed. Credit Union, Case No. 03-1894, 2004 WL 1638250, **7-8, 2004 U.S. Dist. LEXIS 14095, at *20-23 (W.D.La. July 12, 2004) (motion to dismiss denied); In re Burgess, Case No. 05-12813, 2007 WL 130818, **1-2, 2007 Bankr.LEXIS 142, at *4-6 (Bankr.E.D.Va. Jan. 12, 2007) (complaint sufficient); Norman v. Applied Card Sys., Inc. (In re Norman), Case No. 04-11682, Adv. No. 06-1133, 2006 WL 2818814, *1, 2006 Bankr.LEXIS 2576, at *3-5 (Bankr.M.D.Ala. Sept. 29, 2006) (motion to dismiss denied); Smith v. Am. General Fin. Inc. (In re Smith), Case No. 00-02375, Adv. No. 05-9085, 2005 WL 3447645, **2-3, 2005 Bankr.LEXIS 2481, at *6-7 (Bankr.N.D.Iowa Dec. 12, 2005) (motion to dismiss denied); Helmes v. Wachovia Bank (In re Helmes), 336 B.R. 105, 109" }, { "docid": "3275509", "title": "", "text": "hardly be deceptive. Numerous courts have held that an FDCPA claim “cannot be based on the filing of a proof of claim, regardless of the ultimate validity of the underlying claim.” In re Simpson, 2008 WL 4216317 at *3 (Bankr.N.D.Ala.2008); see, e.g., In re Pariseau, 395 B.R. 492, 493-94 (Bankr. M.D.Fla.2008); In re Varona, 388 B.R. 705, 717-21 (Bankr.E.D.Va.2008); see also Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 510-11 (9th Cir.2002) (debtor’s claim under FDCPA for an alleged violation of the bankruptcy discharge must be dismissed); Jones v. Wolpoff & Abramson, L.L.P., 2006 WL 266102 at *3 (E.D.Pa.2006) (same). Although there are conflicting decisions on this issue, the Court finds that Defendants’ position is the better one. Courts have interpreted these FDCPA provisions as prohibiting a debt collector from filing untimely lawsuits against consumer debtors, but these interpretations are grounded in the situation of the defendants facing such lawsuits. See Phillips v. Asset Acceptance, LLC, 736 F.3d 1076, 1079 (7th Cir.2013). The question raised by Defendants’ motion is whether this analysis applies to debt collectors filing bankruptcy proofs of claims. The Eleventh Circuit has held that it does apply in Crawford, 758 F.3d at 1261 and Debtors urge this Court to follow the Crawford reasoning. In the Eighth Circuit case Freyermuth, a debtor alleged that a collection agency engaged in abusive practices in violation of the FDCPA by attempting to collect on a debt that was potentially time-barred. The court found that a creditor may attempt to collect on a claim barred by the statute of limitations and does not violate the FDCPA unless the creditor either threatens to or actually files a lawsuit on such a claim. See 248 F.3d at 771. The filing of a proof of claim does not constitute a threat of litigation. For the reasons discussed below, this Court does not believe that a debtor in bankruptcy is in the position of a consumer facing a collection lawsuit and would not extend Freyer-muth to bankruptcy claims. Debtors also urge the Court to use the “least sophisticated consumer” standard for determining the existence of" }, { "docid": "8248112", "title": "", "text": "“The term 'debt relief agency’ means any person who provides any bankruptcy assistance to an assisted person in return for the payment of money or other valuable consideration, or who is a bankruptcy petition preparer under section 110 [11 USCS § 110].” 11 U.S.C. § 101(12A). Other district courts have held that bankruptcy attorneys fall within the definition of “Debt Relief Agency.” See Olsen v. Gonzales, 350 B.R. 906, 912 (D.Or.2006); Hersh v. United States, 347 B.R. 19, 23 (N.D.Tex.2006); Milavetz, Gallop & Milavetz P.A. v. United States, 355 B.R. 758 (D.Minn.2006); but see In re Reyes, 361 B.R. 276, 280 (Bankr.S.D.Fla.2007) (holding that \"Congress did not intend to include attorneys in the category of 'debt relief agency' ”). Defendant concedes that Plaintiff meets this definition. (Def.’s Local Rule 56(a)(1) Statement ¶ 2.) . “The term 'assisted person’ means any person whose debts consist primarily of consumer debts and the value of whose nonexempt property is less than $150,000.” 11 U.S.C. § 101(3). Defendant concedes that Plaintiff’s clients include individuals whose debts consist primarily of consumer debts and whose nonexempt property is valued at less than $150,000, and who thereby meet the definition of \"assisted person.” (Def.’s Local Rule 56(a)(1) Statement ¶ 3.) . Pursuant to Federal Rule of Civil Procedure 25(d), Diana G. Adams, Acting United States Trustee for Region 2, is substituted for Deirdre A. Martini, the former United States Trustee for Region 2. . At the time that this Court issued its Ruling on Defendant's Motion to Dismiss, Hersch and Olsen were the only two district courts that had addressed the constitutionality of 11 U.S.C. § 526(a)(4). Since that time, two other courts have found § 526(a)(4) to be unconstitutional. See Milavetz, 355 B.R. 758; In re Reyes, 361 B.R. at 279. . The “means test” is used to determine whether the presumption that a Chapter 7 filing is abusive should apply. If the filing is determined to be abusive, it is dismissed or converted to a Chapter 11 or 13 filing. 11 U.S.C. § 707(b)(1). Under this test, an abuse of the bankruptcy system is presumed" }, { "docid": "18413432", "title": "", "text": "the bankruptcy in the first place. Similar arguments can be made concerning automobile loans, or in cases where a client needs to cosign undischargeable student loans. See Hersh v. United States, 347 B.R. 19, 24 (N.D.Tex.2006). . Even under the more lenient Gentile standard, § 526(a)(4) fails. Gentile’s balancing test allows the law to impose \"only narrow and necessary limitations on lawyers’ speech.” 501 U.S. 1030, 1075, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991); see also Hersh, 347 B.R. at 24-25; Olsen v. Gonzales, 350 B.R. 906, 916 (D.Or.2006); Zelotes v. Martini, 352 B.R. 17, 2006 WL 3231423 *4 (D.Conn.2006). . Plaintiffs further claim § 526(a)(4) is unconstitutionally vague and overbroad. The United States Supreme Court has expressed a strong preference for as-applied, as opposed to facial, challenges to the constitutionality of federal laws. Sabri v. United States, 541 U.S. 600, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004). The Court finds this law unconstitutional as applied, and declines to expand its inquiry and consider whether it is also vague and overbroad. . At oral argument, the government’s counsel acknowledged areas where the statute is vague. As an example, it appears that the quantum of bankruptcy advice a lawyer offers may require some attorneys to publish the mandated language and others not. The statute makes no distinction between a lawyer who only occasionally has a client facing bankruptcy and those who do so regularly. Quaere: does a 500-person law firm having a single lawyer who regularly does bankruptcy work have to put the disclaimer on every piece of the firm’s advertising? . At least one court has found these arguments persuasive, holding that debtor attorneys are not \"debt relief agencies.” In re Attorneys at Law and Debt Relief Agencies, 332 B.R. 66, 69 (Bankr.S.D.Ga.2005)." }, { "docid": "15053117", "title": "", "text": "person; and (4) § 528(a)(3)-(4) and (b)(2), which mandate language to be included in debt relief agency advertisements. Plaintiffs also contend that the contract requirements of § 528(a)(l)-(2) violate the Fifth Amendment’s Due Process Clause. C. The District Court Decision In considering these arguments on plaintiffs’ motion for declaratory and injunctive relief and defendants’ motion for dismissal, the district court construed the term “debt relief agency” broadly to include attorneys representing not only consumer debtors but any person who met the statutory definition of “assisted person,” whether or not a bankruptcy proceeding concerned that person’s own debts. See Connecticut Bar Ass’n v. United States, 394 B.R. at 280 (citing Erwin Chemerinsky, Constitutional Issues Posed in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 79 Am. Bankr.L.J. 571, 576-77 (2005)). The district court proceeded to hold that (1) § 526(a)(4)’s proscription on certain advice to assume debt was an unconstitutionally overbroad restriction on speech, see id. at 281-84; (2) the disclosure requirements of § 527 did not violate the First Amendment, see id. at 284-87; (3) § 528(a)(1)-(2)’s contract requirements did not violate either the First Amendment or the Due Process Clause, see id. at 287-88; and (4) the advertising mandates of § 528(a)(3)-(4) and (b)(2) violated the First Amendment, but only insofar as they applied to attorneys representing persons other than consumer debtors, see id. at 288-91. The district court dismissed those parts of plaintiffs’ complaint found not to allege constitutional violations and granted plaintiffs’ motion for a pre-enforcement injunction with respect to those provisions of §§ 526 and 528 found to violate the First Amendment. Both sides appealed. D. The Milavetz Decision After briefing and oral argument in this appeal, the Supreme Court decided Milavetz, Gallop & Milavetz, P.A. v. United States, - U.S. -, 130 S.Ct. 1324, 176 L.Ed.2d 79, which resolved a number of the questions here at issue. Specifically, the Supreme Court held that the term “debt relief agency” does apply to attorneys, see id. at 1331-32, but only those assisting consumer debtors contemplating bankruptcy, see id. at 1341. The Supreme Court also construed" }, { "docid": "18281489", "title": "", "text": "a consequence of her filing might be the sale of her home, she wanted out. The new wrinkle to this commonly encountered scenario is the Debtor’s attempt to use the BAPCPA credit counseling requirement offensively, as a ticket to get out of bankruptcy. The new § 109(h) requires, as a condition to eligibility for bankruptcy relief, that within 180 days prior to an individual debtor’s bankruptcy filing, the debt- or receive (1) a briefing as to available opportunities for credit counseling, and (2) assistance in performing a budget analysis from a nonprofit credit counseling agency, approved ordinarily by the United States Trustee (collectively, “credit counseling”). The purpose of these provisions is to require debtors at least to explore the utility of credit counseling as an option before throwing in the towel and seeking a discharge of their debts in bankruptcy. If a debtor faces “exigent circumstances,” under § 109(h)(3), the debtor can obtain a postpetition extension of the period to receive credit counseling of up to thirty days, based upon a certification “satisfactory to the court,” that the debtor requested, but could not obtain, the required credit counseling services “during the 5-day period beginning on the date on which the debtor made that request.” See e.g., In re Romero, 349 B.R. 616 (Bankr.N.D.Cal.2006); In re Henderson 339 B.R. 34 (Bankr.E.D.N.Y.2006); In re Childs, 335 B.R. 623 (Bankr.D.Md.2005). For “cause” shown, the debtor can obtain up to an additional fifteen days postpetition to receive the required credit counseling. See, e.g., In re Vollmer, 2007 WL 541747 (Bankr.E.D.Va. February 16, 2007); In re Miller, 336 B.R. 232 (Bankr.W.D.Pa.2006); In re Williams, 2005 WL 3752226 (Bankr.E.DArk. December 1, 2005). In this case, the Debtor did not receive the required credit counseling pri- or to her chapter 7 petition being filed. There further is no evidence in the record that the Debtor requested a postpetition extension to receive credit counseling. In fact, the box to request a waiver or extension of time to satisfy the credit counseling requirement on the Debtor’s bankruptcy petition is not checked. On December 1, 2005, the bankruptcy court issued" }, { "docid": "15262818", "title": "", "text": "court finds that negative equity does not so enable the debtors. See, e.g., In re Acaya, 369 B.R. 564, 569-70 (Bankr.N.D.Cal.2007); In re Peaslee, 358 B.R. 545, 557 (Bankr.W.D.N.Y.2006), rev’d, General Motors Acceptance Corp. v. Peaslee, 373 B.R. 252 (W.D.N.Y. Aug.15, 2007); In re Price, 363 B.R. 734, 741 (Bankr.E.D.N.C.2007); In re Westfall, 365 B.R. 755, 762 (Bankr.N.D.Ohio 2007); In re Hernandez-Simpson, 369 B.R. 36, 48 (D.Kan.2007) (“Providing a loan to refinance negative equity on a trade-in, which may be a convenient but unnecessary option for a consumer purchasing a replacement vehicle, is not value given to ‘enable’ that consumer to acquire rights in or the use of the replacement collateral. The term ‘enable’ refers to what it has always referred to, which is the value given to allow the debt- or to pay, in whole or in part, the actual price of a new item of collateral being acquired, in these cases the replacement vehicles themselves.”) (quoting In re Peaslee, 358 B.R. 545, 557 (Bankr.W.D.N.Y. 2006), rev’d, General Motors Acceptance Corp. v. Peaslee, 373 B.R. 252 (W.D.N.Y. 2007)); In re Pajot, 371 B.R. 139, 154, 2007 WL 2109892, *10 (Bankr.E.D.Va.2007) (“The court sees no distinction between the substance of this transaction and paying off and rolling in any other unsecured debt that may be held by the debtor. The lender could just as easily pay off the debtor’s student loans and roll that amount into a secured claim on the second vehicle. The only possible nexus is that the purpose of the first debt was to acquire a vehicle, and the second debt is also to acquire a vehicle.”). In re Bray, 365 B.R. 850 (Bankr. W.D.Tenn.2007) (“When negative equity is financed in with a new transaction, courts typically find that the negative equity is not included within a party’s purchase money security interest for purposes of 11 U.S.C. § 1325(a)’s hanging paragraph ... The Court finds this to be a sound decision ... ”). Again, Judge Clark’s opinion in In re Sanders, 377 B.R. 836 (Bankr.W.D.Tex. 2007) provides a persuasive analysis of why the financing of negative equity" } ]

[ { "docid": "23343800", "title": "", "text": "10. The defendant shall submit his person, residence, office or vehicle to a search, conducted by a United States Probation Officer at a reasonable time and in a reasonable manner, based upon reasonable suspicion of contraband or evidence of a violation of a condition of release; failure to submit to a search may be grounds for revocation; the defendant shall warn any other res idents that the premises may be subject to searches pursuant to this condition. 11. The defendant shall abstain from the use of alcohol and/or all other intoxicants. Scott challenges conditions 3 through 10 in this appeal. II. A district court has wide discretion in imposing the terms and conditions of supervised release. See United States v. Bass, 121 F.3d 1218, 1223 (8th Cir.1997); United States v. Schoenrock, 868 F.2d 289, 291 (8th Cir.1989). However, this discretion is limited by statute. Any condition imposed must be reasonably related to (1) the nature and circumstances of the offense and the history and characteristics of the defendant; ... and (2) the need ... to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. 18 U.S.C. §§ 3553(a)(1), (a)(2)(B)-(D). See also U.S.S.G. § 5D1.3(b) (2000). Additionally, the conditions imposed cannot “involve a ‘greater deprivation of liberty than is reasonably necessary’ to effectuate the goals of Congress and the Sentencing Commission.” United States v. Prendergast, 979 F.2d 1289, 1293 (8th Cir.1992) (quoting 18 U.S.C. § 3583(d)(2)). Furthermore, conditions imposed must be “especially fine-tuned” if they restrict the freedom of persons on probation or supervised release. Id. (quoting United States v. Tolla, 781 F.2d 29, 34 (2d Cir.1986)). In several cases, this Court has found that a district court abused its discretion in imposing certain conditions on the supervised release of a defendant. Specifically, in United States v. Kent, 209 F.3d 1073 (8th Cir.2000), we found that a district court abused its discretion by imposing a special condition of supervised release on a" } ]

[ { "docid": "23493804", "title": "", "text": "leaves, or resides in, Indian country” and, (3) knowingly failed to register or update a registration as required by SORNA. A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence. Although SORNA imposed various requirements on sex offenders, it did not provide that its registration requirements would apply retroactively to sex offenders convicted before July 27, 2006, SORNA’s effective date. United States v. Valverde, 628 F.3d 1159, 1162 (9th Cir.2010). Instead, it gave the Attorney General the authority to enact regulations specifying the applicability of SORNA’s registration requirements to pre-Act offenders. Id. (citing 42 U.S.C. § 16913(d)). In Valverde, we held that the Attorney General did not complete the steps necessary to make SORNA retroactive until August 1, 2008. Id. at 1169. Therefore, the requirements of SORNA became applicable to pre-Act offenders on that date. Id. The Wetter-ling Act, however, remained in effect until repealed by SORNA, effective on the later of July 27, 2009, or one year after the software required by SORNA became available. Pub.L. 109-248, §§ 129(b), 124, 120 Stat. at 600-01, 598. B In 1992, before Congress passed the Wetterling Act but after Montana had enacted its registration requirements,. Elk Shoulder was convicted in a federal district court in Montana of sexual abuse of a six-year-old child in violation of section 2241(c) of Title 18 of the United States Code. In 1992, the court sentenced Elk Shoulder to 172 months in prison, followed by five years supervised release. Upon his release in December 2003, officials informed Elk Shoulder that he was required to register as a sex offender under Montana law. He registered in Yellowstone County, Montana, where he signed and initialed the state’s “Sexual and Violent Offender Registration Form.” By doing so, Elk Shoulder acknowledged that state law required him to maintain a current and updated registration, and" }, { "docid": "20174996", "title": "", "text": "the United States Constitution. In light of the pervasive and severe new and additional disadvantages that result from the mandatory registration of former juvenile offenders and from the requirement that such former offenders report in person to law enforcement authorities every 90 days for 25 years, and in light of the confidentiality that has historically attached to juvenile proceedings, we conclude that the retroactive application of SORNA’s provisions to former juvenile offenders is punitive and, therefore, unconstitutional. I. At the age of thirteen, defendant-appellant S.E. engaged in non-consensual sexual acts with a ten-year-old child of the same sex. The sexual activity continued until S.E. was fifteen years old and the younger child was twelve. S.E. pled “true” to the commission of acts that, had they been committed by an adult, would constitute aggravated sexual abuse under 18 U.S.C. § 1153 and § 2241(c), because the younger child was, during the period of the charges, under twelve. As a result, S.E. was adjudicated delinquent under 18 U.S.C. § 5031, et seq. In 2005, a year before SORNA was adopted, the district court sentenced S.E. to two years of. detention at a juvenile facility followed by supervised release until his twenty-first birthday. He was not at this point, of course, ordered to register as a sex offender. S.E. completed his two-year confinement and moved to a prerelease center where, pursuant to the terms of his sentence, he was to reside for six months. When S.E. failed to engage in a required job search, center officials deemed him a program failure and requested his removal. In 2007, a year after the enactment of SORNA, the district court revoked S.E.’s supervised release due to his failure to reside at the center as required by his conditions of supervision, and ordered an additional six months of confinement and continued supervision until S.E.’s twenty-first birthday. The judge also imposed a “special condition” mandating that S.E. register as a sex offender. S.E. objected to the imposition of the registration requirement and timely filed a notice of appeal. The government argues that the special condition is valid because" }, { "docid": "22004410", "title": "", "text": "137 months. It also indicated that Jorge-Salgado may be required to register as a sex offender. PSR ¶ 37. Neither party objected to the PSR. At sentencing, the district court granted a United States Sentencing Guidelines § 4A1.3 downward departure and reduced Jorge-Salgado’s criminal history category from VI to V, resulting in an advisory guidelines range of 100 to 125 months. The district court then sentenced Jorge-Salgado to 120 months’ imprisonment and five years’ supervised release. As a condition of his supervised release, the district court ordered Jorge-Salgado to register as a sex offender based on his prior conviction for criminal sexual conduct. Jorge-Salgado objected to this condition. The district court responded, “I want to make sure this is correct, but if it’s required by law I will require it, if it’s not required, I won’t.” In the judgment filed the next day, the district court required as a condition of supervised release that Jorge-Sal-gado “register with the state sex offender registration agency in the state where the defendant resides, works, or is a student as directed by the probation officer.” Jorge-Salgado filed a timely notice of appeal. II. DISCUSSION “We review the district court’s imposition of the terms and conditions of supervised release for an abuse of discretion.” United States v. Boston, 494 F.3d 660, 667 (8th Cir.2007). We recognize that the district court is afforded wide discretion in imposing supervised release conditions. Id. The district court must impose certain conditions that are mandated by federal law and may impose other discretionary conditions to the extent they meet certain statutory requirements. See 18 U.S.C. § 3583(d); Boston, 494 F.3d at 667. Jorge-Salgado argues that the district court abused its discretion by requiring him to register as a sex offender as a condition of supervised release because the condition is not reasonably related to the offenses of conviction. See United States v. Scott, 270 F.3d 632, 636 (8th Cir.2001) (holding that the district court abused its discretion in imposing conditions of supervised release that were tailored for a prior sex offense conviction because the conditions were not reasonably related to" }, { "docid": "22004412", "title": "", "text": "the current offense of armed bank robbery). He then argues that registration as a sex offender was not a mandatory condition under federal law because SORNA was not determined to be retroactively applicable until after he was sentenced. Congress enacted SORNA on July 27, 2006. It provides that “[t]he court shall order, as an explicit condition of supervised release for a person required to register under the Sex Offender Registration and Notification Act, that the person comply with the requirements of that Act.” Pub.L. No. 109-248, § 141(e) (codified as amended at 18 U.S.C. § 3583(d)). Congress envisioned that this requirement could apply retroactively: “The Attorney General shall have the authority to specify the applicability of the requirements of [SORNA] to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders.... ” 42 U.S.C. § 16913(d). On February 28, 2007, the Attorney General issued a regulation that required SORNA to “apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.” 28 C.F.R. 72.3 (2007). Jorge-Salga-do asserts that the retroactive application of SORNA’s sex offender registration requirement was not a condition mandated by federal law until February 28, 2007. Because Jorge-Salgado was sentenced on February 15, 2007, before the Attorney General issued the regulation, he claims that the district court had no authority to apply SORNA’s registration requirement retroactively to him. Federal law requires the district court to “order, as an explicit condition of supervised release, that the defendant not commit another Federal, State, or local crime during the term of supervision.... ” 18 U.S.C. § 3583(d). Jorge-Salgado’s failure to register as a sex offender would have violated this mandatory condition of supervised release because he would have committed a state crime under Minnesota law if he did not re-register as a sex offender based on the present convictions. See Minn.Stat. § 243.166, subd. 5(a) (establishing criminal penalties for knowingly violating registration requirements). Under state law, his 1993 forced sodomy conviction" }, { "docid": "22959521", "title": "", "text": "release imposed by the district court. She argues that the district court abused its discretion in imposing special condition one, which requires her to participate in sexual offender treatment, and special condition three, which forbids direct contact with minors absent written approval from her probation officer and prohibits her from entering areas children frequent. “We review the district court’s imposition of the terms and conditions of supervised release for an abuse of discretion.” United States v. Jorge-Salgado, 520 F.3d 840, 842 (8th Cir.2008) (internal quotation marks omitted). “The district court is afforded wide discretion in imposing conditions on a defendant’s supervised release so long as they meet the requirements of 18 U.S.C. § 3583(d).” United States v. Boston, 494 F.3d 660, 667 (8th Cir.2007). Section 3583(d) requires that any special conditions imposed must be “reasonably related” to “the nature and circumstances of the offense, the defendant’s history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant’s educational, vocational, medicinal or other correctional needs.” See United States v. Bender, 566 F.3d 748, 751 (8th Cir.2009) (internal quotation marks omitted). In addition, such conditions must “involve[ ] no greater deprivation of liberty than is reasonably necessary” to achieve these purposes and must be “consistent with any pertinent policy statements issued by the Sentencing Commission.” § 3583(d). Richart contends that special conditions one and three are unwarranted under § 3583 because the district court’s factual finding that Richart physically and sexually abused the children in her care was clearly erroneous. See United States v. Douglas, 646 F.3d 1134, 1136 (8th Cir.2011) (recognizing that we review the district court’s factual findings at sentencing for clear error). She concedes that if the district court did not clearly err in finding that she physically and sexually abused the children in her care, then the special conditions were proper. At sentencing, the district court overruled Richart’s objection to the allegations in the PSR that Richart physically and sexually abused the children in her care based on the testimony of Agent Lowe. Lowe’s testimony was as" }, { "docid": "11868567", "title": "", "text": "instant offense.” Id. The Application Note instructs the sentencing court to consider, inter alia, the factors laid out in 18 U.S.C. § 3553(a). U.S.S.G. § 5G1.3 cmt. n. 3(A). The district court provided a statement of reasons, as required under our case law. Hurlich, 293 F.3d at 1230. The court was not required to make specific findings, as Mr. Hahn argues. Id. at 1230. The sentencing court did not abuse its discretion in giving Mr. Hahn a consecutive sentence. V. Mr. Hahn challenges the imposition of special sex offender conditions, arguing that the conditions do not meet 18 U.S.C. § 3583(d)’s requirements for conditions of supervised release. We review the district court’s decision to impose special conditions of supervised release for abuse of discretion. United States v. Bartsma, 198 F.3d 1191, 1197 (10th Cir.1999). The district court gave Mr. Hahn prior notice of its intent to impose sex offender conditions as required under our prior holdings. See Bartsma, 198 F.3d at 1200 (holding as matter of first impression that district court must give “reasonable pre-sentence notice” before ordering sex offender registration as a special condition), overruled on other grounds by United States v. Atencio, 476 F.3d 1099, 1105 n. 6 (10th Cir.2007). Mr. Hahn filed a notice of objection to those conditions. At the final sentencing hearing, after hearing argument from both sides, the court imposed the special sex offender conditions. The district court is required to give reasons on the record for the imposition of special conditions of supervised release. See United States v. Kravchuk, 335 F.3d 1147, 1159 (10th Cir.2003). The court need only provide a “generalized statement of its reasoning.” , United States v. Edgin, 92 F.3d 1044, 1049 (10th Cir.1996). Here, the sentencing court provided an explanation of its decision at the final sentencing hearing: [T]he Court finds that the history and characteristics of this defendant, the fact that the [sex] crimes occurred immediately ... after cessation of the activity in this case, and the fact that the United States probation officer is supervising the defendant and not the particular crime of which he is convicted," }, { "docid": "22004415", "title": "", "text": "Jorge-Salgado’s failure to register would constitute a state crime under Minnesota law, the sex offender registration condition imposed by the district court was simply a more specific pronouncement of the mandatory condition that he not commit a state crime during his term of supervised release. Therefore, the district court did not abuse its discretion in requiring Jorge-Salgado to register as a sex offender as a condition of supervised release. See United States v. Talbert, 501 F.3d 449, 452 (5th Cir.2007) (“[I]t is axiomatic that a district court can include as a condition that the defendant obey the law.”). Jorge-Salgado also argues that Federal Rule of Criminal Procedure 32(h) requires the district court to give advance notice of its intent to impose sex offender registration as a condition of supervised release. See United States v. Atencio, 476 F.3d 1099, 1108 (10th Cir.2007) (citing United States v. Bartsma, 198 F.3d 1191, 1199-1200 (10th Cir.1999)). Our circuit has not adopted this interpretation of Rule 32(h), and we need not decide whether to do so at this time. Jorge-Salgado had sufficient notice because paragraph thirty-seven of the PSR, which he received in advance of sentencing, indicated that he may be required to register as a sex offender. We conclude that the PSR provided sufficient notice. III. CONCLUSION Accordingly, we affirm the district court’s decision to require Jorge-Salgado to register as a sex offender as a condition of supervised release. . The Honorable James M. Rosenbaum, Chief Judge, United States District Court for the District of Minnesota." }, { "docid": "9515218", "title": "", "text": "presentence investigation report. III. In United States v. York, 357 F.3d 14 (1st Cir.2004), this court set forth the legal criteria for imposition of supervised release conditions, as well as for appellate review of those conditions. We stressed that “the facts of [a defendant’s] underlying offense and criminal history are pertinent to the district court’s choice of supervised release conditions”: This is so by statute. Under 18 U.S.C. § 3583(d), the district court may impose any special condition of supervised release that it considers “appropriate,” provided that the condition satisfies certain specified criteria. One such criterion is that the condition imposed be “reasonably related to the factors set forth in section 3553(a)(1).” Id. § 3583(d)(1). Section 3553(a)(1), in turn, requires the court to consider “the nature and circumstances of the offense and the history and characteristics of the defendant.” See also U.S.S.G. § 5D1.3(b). Id. at 17. In York, we noted that there were limitations on the district court’s power to fashion conditions of supervised release. Id. at 20. The critical test is whether the condition is reasonably related to one or more of the goals of supervised release. Id. The district court here specifically made that link. It stated that Morales-Cruz had a lack of control, did not respect others, needed to be deterred, and that the community needed protecting from him. Morales-Cruz argues that failure to register is not a sex offense, though he acknowledges that sex offender treatment may be imposed in a case in which the underlying crime is not a sex offense. See id. at 19-20. Contrary to Morales-Cruz’s main argument, the court appropriately considered his failure to register under SORNA in three jurisdictions, and “[t]he condition that he attend sex-offender treatment is plainly related to his criminal history,” id. at 21, as well as to his present offense. SORNA requires sex offenders to “register, and keep the registration current, in each jurisdiction where the offender resides,” 42 U.S.C. § 16913(a), by providing certain “information to the appropriate official for inclusion in the sex offender registry,” id. § 16914(a), and by appearing in person at" }, { "docid": "13517783", "title": "", "text": "of imprisonment followed by a three-year supervised release term, and imposed sex offender registration as a condition of release. Dodge appeals only the portion of his sentence requiring him to register as a Tier I sex offender under SORNA. “We review the district court’s imposition of a special condition of supervised release for abuse of discretion, so long as the objection was preserved for appeal.” United States v. Taylor, 338 F.3d 1280, 1283 (11th Cir.2003) (per curiam). We review a district court’s interpretation of a statute de novo. United States v. Prospen, 201 F.3d 1335, 1342 (11th Cir.2000). A district court abuses its discretion if it applies the incorrect legal standard. Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996), superseded by statute on other grounds as recognized in United States v. Mandhai, 375 F.3d 1243, 1249 (11th Cir.2004). II. The Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, 120 Stat. 587 (“Walsh Act”) was enacted on July 27, 2006. Title I of the Act, SORNA, 42 U.S.C. §§ 16901-16962, establishes a national sex offender registry law, the purpose of which is “to protect the public from sex offenders and offenders against children.” Id. § 16901. SORNA defines a “sex offender” as an “individual who was convicted of- a sex offense.” Id. § 16911(1). Apart from exceptions not applicable here, “sex offense,” in turn, is either: (i) a criminal offense that has an element involving a sexual act or sexual contact with another; (ii) a criminal offense that is a specified offense against a minor; (iii) a Federal offense (including an offense prosecuted under section 1152 or 1153 of Title 18) under section 1591, or chapter 109A, 110 (other than section 2257, 2257A, or 2258), or 117, of Title 18; (iv) a military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. 951 note); or (v) an attempt or conspiracy to commit an offense described in clauses (i) through (iv). Id. § 16911(5)(A). The parties agree that only subsection (ii) could provide" }, { "docid": "14457825", "title": "", "text": "chat room were trading images of child pornography and that Defendant requested and knowingly received such images. In light of the evidence before the jury, we cannot conclude that “no reasonable juror” could have reached this verdict. Carter, 130 F.3d at 1439. Consequently, the evidence is sufficient to support Defendant’s conviction on the two counts of knowingly receiving child pornography. C. Supervised Release Defendant argues that the district court erred by requiring him, as a condition of supervised release, to comply with the registration requirements of the Colorado sex offender registration statute, Colo. Rev.Stat. § 18-3-412.5. Defendant argues that his conviction does not fall within the purview of the statute. Defendant did not object to this condition of supervised release. Therefore, we review the district court’s imposition of the condition for plain error. United States v. Orozco-Rodriguez, 60 F.3d 705 (10th Cir.1995). District courts have broad discretion to fashion conditions of supervised release. See United States v. Edgin, 92 F.3d 1044, 1048 (10th Cir.1996). In addition to certain mandatory conditions of supervised release set forth in 18 U.S.C. § 3583(d), a court may impose additional conditions to the extent that such conditions “involve no greater deprivation of liberty than is reasonably necessary” to deter criminal conduct, protect the public, and provide the defendant with needed educational or vocational training, medical care, or other correctional treatment. 18 U.S.C. §§ 3583(d) and 3553(a)(2). Section 3583(d) also provides that the conditions must be “reasonably related” to “the nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S.C. §§ 3583(d)(1) and 3553(a)(1) As a condition of supervised release, the district court ordered Defendant to “comply with the State of Colorado Sex Offender registration requirements for convicted sex offenders pursuant to Colorado Revised Statutes 18-3-412.5.” Section 18-3-412.5(l)(b) provides that: On and after July 1, 1994, any person who is convicted in the state of Colorado of an offense involving unlawful sexual behavior or for which the factual basis involved an offense involving unlawful sexual behavior ... shall be required to register in the manner prescribed in subsection (3) of" }, { "docid": "23431681", "title": "", "text": "SHEPHERD, Circuit Judge. A jury convicted Deven Poitra of one count of aggravated sexual abuse under 18 U.S.C. §§ 1153, 2241(c) and one count of failure to register as a sex offender, as required by the Sex Offender Registration and Notification Act (SORNA), under 18 U.S.C. § 2250. Poitra appeals, challenging his conviction as well as the district court’s imposition of certain special conditions of supervised release. We affirm. I. We recite the facts in the light most favorable to the verdict. In 2009, Poitra began living in Leroy Nadeau’s home located near Dunseith, North Dakota. Among those also living in the home was J.M., Nadeau’s ten-year-old daughter. On December 20, 2009, Poitra grabbed J.M., forcibly took her to the laundry room of the Dunseith home, and inserted his finger into her vagina. Poitra was initially indicted on a single count of aggravated sexual abuse of a child on January 13, 2010. The Government later filed a superceding indictment, add ing a count for failure to register in violation of SORNA. The basis for the second count was Poitra’s failure to update his residence, as required by SORNA, when he began living in the Dunseith home. Following a two-day trial, a jury convicted Poitra on both counts. Poitra was then sentenced to 360 months imprisonment — the statutory mandatory minimum — for the aggravated sexual abuse conviction and 120 months imprisonment for the SORNA violation conviction to be served concurrently. The district court also ordered concurrent ten-year terms of supervised release for each count. Poitra argues on appeal that the district court committed two errors in its final jury instructions and two errors in imposing the special conditions of supervised release. II. We typically review a challenge to jury instructions for an abuse of discretion. United States v. White Calf, 634 F.3d 453, 456 (8th Cir.2011). Where a party fails to timely object to an instruction at trial, however, we review only for plain error. United States v. Alcorn, 638 F.3d 819, 822 (8th Cir.2011). To obtain relief under a plain-error standard of review, the party seeking relief must show" }, { "docid": "13517782", "title": "", "text": "and masturbating. Counts II and III charged similar offenses between October 2006 and January 2007 involving two purportedly underage girls using the screen names “hope_in_bama” and “hello_kitten.” Pros eeutors stated that Counts II and III also encompassed the allegation that Dodge used a web camera to broadcast to the girls live images of himself masturbating. Dodge’s pre-sentence investigation report suggested that the court impose SOR-NA registration as a condition of supervised release. Dodge objected, arguing that he was not a “sex offender” because his offense was not a “sex offense” as defined by 42 U.S.C. § 16911(5)(A) and - (7). Overruling Dodge’s objection at sentencing, the district court found that the statute’s expanded definition of “sex offense” encompassed Dodge’s conduct underlying the conviction. Specifically, the court stated that Dodge’s “sitting in front of a computer with a camera pointed at [his] private parts,” while thinking he was talking to a thirteen-year-old girl, must be a “sex offense against a minor” as contemplated by SORNA. (R. at 89.) Accordingly, the court sentenced Dodge to eighteen months of imprisonment followed by a three-year supervised release term, and imposed sex offender registration as a condition of release. Dodge appeals only the portion of his sentence requiring him to register as a Tier I sex offender under SORNA. “We review the district court’s imposition of a special condition of supervised release for abuse of discretion, so long as the objection was preserved for appeal.” United States v. Taylor, 338 F.3d 1280, 1283 (11th Cir.2003) (per curiam). We review a district court’s interpretation of a statute de novo. United States v. Prospen, 201 F.3d 1335, 1342 (11th Cir.2000). A district court abuses its discretion if it applies the incorrect legal standard. Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996), superseded by statute on other grounds as recognized in United States v. Mandhai, 375 F.3d 1243, 1249 (11th Cir.2004). II. The Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, 120 Stat. 587 (“Walsh Act”) was enacted on July 27, 2006. Title I of the" }, { "docid": "4298260", "title": "", "text": "PER CURIAM. Jonathon Curry appeals his conviction under 18 U.S.C. § 2250, for failing to register as a sex offender, as required by the Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. §§ 16901-16991. He also appeals certain special conditions of supervised release imposed by the district court. We affirm the conviction, vacate some of the special conditions, and remand for resentencing. In 2002, a Nevada court convicted Curry of attempted lewdness with a child under fourteen years of age and sentenced him to 120 months’ imprisonment. He was released in November 2007, and signed a Lifetime Supervision Agreement. The agreement directed Curry to comply with all sex offender registration requirements wherever he resided. Curry initially registered as a sex offender in Nevada, but later moved to Arkansas. Law enforcement agents determined that Curry was living in Arkansas in late 2008 and early 2009 without having registered as a sex offender in that State. In February 2009, a grand jury indicted Curry on one count of knowingly failing to register as a sex offender as required by SORNA, in violation of 18 U.S.C. § 2250. Under SORNA, “[a] sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” 42 U.S.C. § 16913(a). It is a federal offense for a person who is required to register under SORNA to travel in interstate commerce and to fail knowingly to register or update a registration as required by SOR-NA. See 18 U.S.C. § 2250(a). Curry moved to dismiss the indictment, asserting that § 2250 and SORNA’s registration requirements violated the Constitution. The district court denied Curry’s motion, and Curry entered a conditional plea of guilty, reserving his right to appeal the denial of his motion to dismiss. The district court sentenced Curry to 24 months’ imprisonment and a life term of supervised release. Curry first argues that the district court erred in denying his motion to dismiss the indictment. He contends that Congress lacked authority to enact SORNA, that his conviction violates the" }, { "docid": "22004411", "title": "", "text": "as directed by the probation officer.” Jorge-Salgado filed a timely notice of appeal. II. DISCUSSION “We review the district court’s imposition of the terms and conditions of supervised release for an abuse of discretion.” United States v. Boston, 494 F.3d 660, 667 (8th Cir.2007). We recognize that the district court is afforded wide discretion in imposing supervised release conditions. Id. The district court must impose certain conditions that are mandated by federal law and may impose other discretionary conditions to the extent they meet certain statutory requirements. See 18 U.S.C. § 3583(d); Boston, 494 F.3d at 667. Jorge-Salgado argues that the district court abused its discretion by requiring him to register as a sex offender as a condition of supervised release because the condition is not reasonably related to the offenses of conviction. See United States v. Scott, 270 F.3d 632, 636 (8th Cir.2001) (holding that the district court abused its discretion in imposing conditions of supervised release that were tailored for a prior sex offense conviction because the conditions were not reasonably related to the current offense of armed bank robbery). He then argues that registration as a sex offender was not a mandatory condition under federal law because SORNA was not determined to be retroactively applicable until after he was sentenced. Congress enacted SORNA on July 27, 2006. It provides that “[t]he court shall order, as an explicit condition of supervised release for a person required to register under the Sex Offender Registration and Notification Act, that the person comply with the requirements of that Act.” Pub.L. No. 109-248, § 141(e) (codified as amended at 18 U.S.C. § 3583(d)). Congress envisioned that this requirement could apply retroactively: “The Attorney General shall have the authority to specify the applicability of the requirements of [SORNA] to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders.... ” 42 U.S.C. § 16913(d). On February 28, 2007, the Attorney General issued a regulation that required SORNA to “apply to all sex offenders, including sex offenders convicted" }, { "docid": "22004414", "title": "", "text": "required Jorge-Salgado to register as a predatory sex offender through December 28, 2003. Id. at subd. 6(a) (requiring ten years of registration). In 2005, Minnesota law required Jorge-Salgado to re-register for ten years as a result of his felony domestic assault conviction. See PSR ¶ 44; Minn.Stat. § 243.167 (requiring individuals who have completed the registration requirements to re-register for violations of Minn.Stat. § 609.2242, subd. 4 (felony domestic assault)); Minn.Stat. § 243.166, subd. 6(a) (requiring ten years of registration). State law further provides: “If a person required to register under this section is subsequently incarcerated following a conviction for a new offense[,] ... the person shall continue to register until ten years have elapsed since the person was last released from incarceration or until the person’s ... supervised release ... period expires, whichever occurs later.” Minn.Stat. § 243.166, subd. 6(c). As a result of his convictions and incarceration in this case, Minnesota law requires Jorge-Salgado to register as a sex offender and remain registered for ten years after his supervised release period expires. Because Jorge-Salgado’s failure to register would constitute a state crime under Minnesota law, the sex offender registration condition imposed by the district court was simply a more specific pronouncement of the mandatory condition that he not commit a state crime during his term of supervised release. Therefore, the district court did not abuse its discretion in requiring Jorge-Salgado to register as a sex offender as a condition of supervised release. See United States v. Talbert, 501 F.3d 449, 452 (5th Cir.2007) (“[I]t is axiomatic that a district court can include as a condition that the defendant obey the law.”). Jorge-Salgado also argues that Federal Rule of Criminal Procedure 32(h) requires the district court to give advance notice of its intent to impose sex offender registration as a condition of supervised release. See United States v. Atencio, 476 F.3d 1099, 1108 (10th Cir.2007) (citing United States v. Bartsma, 198 F.3d 1191, 1199-1200 (10th Cir.1999)). Our circuit has not adopted this interpretation of Rule 32(h), and we need not decide whether to do so at this time. Jorge-Salgado" }, { "docid": "20174997", "title": "", "text": "SORNA was adopted, the district court sentenced S.E. to two years of. detention at a juvenile facility followed by supervised release until his twenty-first birthday. He was not at this point, of course, ordered to register as a sex offender. S.E. completed his two-year confinement and moved to a prerelease center where, pursuant to the terms of his sentence, he was to reside for six months. When S.E. failed to engage in a required job search, center officials deemed him a program failure and requested his removal. In 2007, a year after the enactment of SORNA, the district court revoked S.E.’s supervised release due to his failure to reside at the center as required by his conditions of supervision, and ordered an additional six months of confinement and continued supervision until S.E.’s twenty-first birthday. The judge also imposed a “special condition” mandating that S.E. register as a sex offender. S.E. objected to the imposition of the registration requirement and timely filed a notice of appeal. The government argues that the special condition is valid because S.E. is required to register by SORNA. S.E. responds that the Ex Post Facto Clause of the United States Constitution bars the retroactive application of the registration provision of SORNA to persons who prior to its passage were designated as juvenile offenders. Reviewing all questions at issue here de novo, see Beeman v. TDI Managed, Care Services, 449 F.3d 1035, 1038 (9th Cir.2006) (questions of statutory interpretation); Hunter v. Ayers, 336 F.3d 1007, 1011 (9th Cir.2003) (violations of the Ex Post Facto Clause), we hold that SORNA’s juvenile registration provision may not be applied retroactively to individuals adjudicated delinquent under the Federal Juvenile Delinquency Act, and we reverse the directive that S.E. must register under the Act. II. A. Federal Juvenile Delinquency Act (“FJDA”) The Federal Juvenile Delinquency Act (“FJDA”) sets forth the procedures governing federal juvenile adjudications. 18 U.S.C. § 5031 et seq. “The purpose of the FJDA is to ‘remove juveniles from the ordinary criminal process in order to avoid the stigma of a prior criminal conviction and to encourage treatment and rehabilitation.’" }, { "docid": "21650163", "title": "", "text": "1153(a). The court sentenced respondent to two years of juvenile detention, followed by juvenile supervision until his 21st birthday. Respondent was to spend the first six months of his postcon-finement supervision in a prerelease center. See United States v. Juvenile Male, 560 U. S. 558, 559 (2010) (per curiam). In 2006, while respondent remained in juvenile detention, Congress enacted SORNA. 120 Stat. 590. Under SORNA, a sex offender must “register, and keep the registration current, in each jurisdiction” where the offender resides, is employed, or attends school. 42 U. S. C. § 16913(a). This registration requirement extends to certain juveniles adjudicated as delinquent for serious sex offenses. § 16911(8). In addition, an interim rule issued by the Attorney General mandates that SORNA’s requirements apply retroactively to sex offenders convicted before the statute’s enactment. 72 Fed. Reg. 8897 (2007) (codified at 28 CFR pt. 72 (2010)); see 42U.S. C. § 16913(d). In July 2007, the District Court determined that respondent had failed to comply with the requirements of his prere-lease program. The court revoked respondent’s juvenile supervision, imposed an additional 6-month term of detention, and ordered that the detention be followed by supervision until respondent’s 21st birthday. 560 U. S., at 559. At the Government’s urging, and over respondent’s objection, the court also imposed a “special eonditio[n]” of supervision requiring respondent to regisler and keep current as a sex offender. Id., at 560 (internal quotation marks omitted); see Pet. for Cert. 9 (noting the Government’s argument in the District Court that respondent should be required to register under SORNA “ ‘at least until’ ” his release from juvenile supervision on his 21st birthday). On appeal to the Ninth Circuit, respondent challenged this “special conditio[n]” of supervision. He requested that the Court of Appeals “reverse th[e] portion of his sentence requiring Sex Offender Registration and remand with instructions that the district court... strik[e] Sex Offender Registration as a condition of juvenile supervision.” Opening Brief for Defendant-Appellant in No. 07-30290 (CA9), p. 25. Then, in May 2008, with his appeal still pending in the Ninth Circuit, respondent turned 21, and the juvenile-supervision order" }, { "docid": "22004413", "title": "", "text": "of the offense for which registration is required prior to the enactment of that Act.” 28 C.F.R. 72.3 (2007). Jorge-Salga-do asserts that the retroactive application of SORNA’s sex offender registration requirement was not a condition mandated by federal law until February 28, 2007. Because Jorge-Salgado was sentenced on February 15, 2007, before the Attorney General issued the regulation, he claims that the district court had no authority to apply SORNA’s registration requirement retroactively to him. Federal law requires the district court to “order, as an explicit condition of supervised release, that the defendant not commit another Federal, State, or local crime during the term of supervision.... ” 18 U.S.C. § 3583(d). Jorge-Salgado’s failure to register as a sex offender would have violated this mandatory condition of supervised release because he would have committed a state crime under Minnesota law if he did not re-register as a sex offender based on the present convictions. See Minn.Stat. § 243.166, subd. 5(a) (establishing criminal penalties for knowingly violating registration requirements). Under state law, his 1993 forced sodomy conviction required Jorge-Salgado to register as a predatory sex offender through December 28, 2003. Id. at subd. 6(a) (requiring ten years of registration). In 2005, Minnesota law required Jorge-Salgado to re-register for ten years as a result of his felony domestic assault conviction. See PSR ¶ 44; Minn.Stat. § 243.167 (requiring individuals who have completed the registration requirements to re-register for violations of Minn.Stat. § 609.2242, subd. 4 (felony domestic assault)); Minn.Stat. § 243.166, subd. 6(a) (requiring ten years of registration). State law further provides: “If a person required to register under this section is subsequently incarcerated following a conviction for a new offense[,] ... the person shall continue to register until ten years have elapsed since the person was last released from incarceration or until the person’s ... supervised release ... period expires, whichever occurs later.” Minn.Stat. § 243.166, subd. 6(c). As a result of his convictions and incarceration in this case, Minnesota law requires Jorge-Salgado to register as a sex offender and remain registered for ten years after his supervised release period expires. Because" }, { "docid": "22959520", "title": "", "text": "district courts are due in sentencing, we give their decisions about what is reasonable wide berth and almost always let them pass.” (internal quotation marks omitted)). Particularly given the impermissibility of proportionality review after Gall, 552 U.S at 49, 128 S.Ct. 586, we see no basis to conclude that the district court abused its discretion in sentencing Richart to 120 months’ imprisonment. See, e.g., United States v. Bear Robe, 521 F.3d 909, 911 (8th Cir.2008); United States v. Austad, 519 F.3d 431, 435 (8th Cir.2008) (opining that before Gall, the defendant’s sentence “might have presented a closer issue,” but recognizing that “[i]n light of Gall, ... although it is uncontroversial that a major departure should be supported by a more significant justification than a minor one, the justification need not be precisely proportionate” (internal quotation marks and citations omitted) (emphasis omitted)). Accordingly, we find that Richart’s sentence is substantively reasonable and affirm the judgment of the district court. C. Special Conditions of Supervised Release Lastly, Richart objects to two of the special conditions of supervised release imposed by the district court. She argues that the district court abused its discretion in imposing special condition one, which requires her to participate in sexual offender treatment, and special condition three, which forbids direct contact with minors absent written approval from her probation officer and prohibits her from entering areas children frequent. “We review the district court’s imposition of the terms and conditions of supervised release for an abuse of discretion.” United States v. Jorge-Salgado, 520 F.3d 840, 842 (8th Cir.2008) (internal quotation marks omitted). “The district court is afforded wide discretion in imposing conditions on a defendant’s supervised release so long as they meet the requirements of 18 U.S.C. § 3583(d).” United States v. Boston, 494 F.3d 660, 667 (8th Cir.2007). Section 3583(d) requires that any special conditions imposed must be “reasonably related” to “the nature and circumstances of the offense, the defendant’s history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant’s educational, vocational, medicinal or other correctional needs.”" }, { "docid": "22004408", "title": "", "text": "GRUENDER, Circuit Judge. Francisco Jorge-Salgado pled guilty to charges of possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court sentenced him to 120 months’ imprisonment and five years’ supervised release. As a condition of his supervised release, the district court also ordered Jorge-Salgado to register as a sex offender based on his previous conviction of criminal sexual conduct. Jorge-Salgado appeals this condition claiming that the Sex Offender Registration and Notification Act (“SORNA”), Pub.L. No. 109-248, §§ 101-155, 120 Stat. 587, 590-611 (2006) (codified as 42 U.S.C. §§ 16901-16962), did not apply at the time of his sentencing. We affirm. I. BACKGROUND Jorge-Salgado spent a significant portion of his youth in multiple juvenile detention centers because Minnesota adjudicated him a juvenile delinquent. At one such center, Jorge-Salgado, at the age of fifteen, forcibly sodomized a fellow juvenile. Based on this incident, he was adjudicated delinquent for criminal sexual conduct in the third degree in 1993. Consequently, Minnesota law required him to register as a predatory sex offender through December 28, 2003. Jorge-Salgado continued his criminal activities after he reached the age of majority. In 2005, he was convicted of a felony domestic assault, which required him to re-register as a predatory sex offender. On May 16, 2006, a federal grand jury returned a 56-count superseding indictment against Jorge-Salgado and twenty-six other individuals for conspiracy to distribute and possess with intent to distribute various controlled substances between January 1, 2000 and March 7, 2006. The indictment also charged Jorge-Salgado with possession with intent to distribute 50 grams of methamphetamine, possession of a firearm during a drug trafficking crime and possession of a firearm by a felon. On June 29, 2006, Jorge-Salgado pled guilty to the offenses of possession with intent to distribute methamphetamine and possession of a firearm by a felon. The presentence investigation report (“PSR”) determined a total offense level of 25, a criminal history category of VI and an advisory sentencing guidelines range of 110 to" } ]

[ { "docid": "11639813", "title": "", "text": "to by the defendants and the Commission would in effect merely require the Committee to supply all stockholders who furnished proxies to them with material correcting the misstatements complained of in its complaint. To decree that the stockholders who gave their proxies to the Committee may revoke them, is to confer no greater right than they presently have. The Commission’s counsel stated at the time the stipulation was entered on the record that “this is not the remedy we have suggested, it is the remedy that we have required in our action and we do not in any way try to make the Court believe that we think the Court ought not to use its own discretion in granting relief.\" Placing the onus of obtaining restitution upon the misled stockholders is not here “appropriate in the public interest”, nor the relief best calculated “for the protection of investors”. The facts developed upon the hearings before this Court compel a holding that the proxies procured by the Committee are void. See S.E.C. v. May, D.C.S.D.N.Y.1955, 134 F.Supp. 247, affirmed 2 Cir., 1956, 229 F.2d 123; S.E.C. v. Okin, D.C.S.D. N.Y.1944, 58 F.Supp. 20. See also Loss, Securities Regulation p. 544 (1951). Only thus will the stockholders be in the position they occupied before they acted in reliance upon the unlawful soliciting material. Then, supplied with proxy material containing up-to-date information which complies with the proxy rules and corrects all misstatements and omissions in the proxy material theretofore received from the Committee, they will be in a position to act with the truth before them as they think is in their best interests. The meeting of stockholders is adjourned to September 26, 1958, at the same place and hour as heretofore scheduled. The adjournment will permit of ample time for resolicitation. Defendants argue that to deprive the Committee of the right to exercise the proxies they procured would be tantamount to disenfranchising the stockholders from whom they were obtained. The error inherent in this contention flows from the failure to distinguish between the rights of an agent who procured his appointment in" } ]

[ { "docid": "3360644", "title": "", "text": "in fashioning equitable remedies to see that justice is done. The main harm the parties have caused has been to deprive shareholders of the opportunity to make a decision on how to cast their votes on the basis of timely, accurate, and comprehensible information. TCC has furnished misleading and outdated information to its shareholders. The Stockholders’ Committee began soliciting proxies before the time permitted by the SEC. The main interest the court must protect is the right of shareholders to be furnished the opportunity to make an informed decision. It is apparent that the Annual Meeting cannot go forward as scheduled and it is hereby enjoined. The misleading proxy statement and outdated information furnished by TCC taint the proxies that they have obtained. The premature solicitation by the Stockholders’ Committee are less damaging to the rights of shareholders. Nevertheless, since it is impossible to assess the effect those premature communications had on its solicitation effort, permitting the Committee to retain those proxies would also render the contest unfair. Accordingly, the only solution is to void all the proxies obtained by each side and to recommence the process of soliciting proxies for a rescheduled shareholders’ meeting. In addition, the background of this battle for corporate control strongly suggests that future transgressions may occur. The stakes are high and the temptation to gain advantage is strong. Accordingly, to dissuade the parties from future transgressions of the securities law, they are hereby enjoined from future violations of Section 14(a) and all applicable provisions of the securities laws and SEC regulations in connection with the proxy solicitation for a rescheduled annual meeting. The court recognizes the cost and burden inherent in such a remedy. Nevertheless, the rights of corporate suffrage outweigh the economic hardship imposed by the remedy. Moreover, although it may not be a consolation to the parties, it is their own actions that have placed them in the position in which they now find themselves. CONCLUSION For the foregoing reasons, plaintiffs’ motions for preliminary injunction are granted to the extent set forth above. The TCC Annual Meeting for August 2,1989 is hereby" }, { "docid": "23365052", "title": "", "text": "that Rule 14a-9 may be read as authorizing a court to require a further statement and an opportunity to revoke proxies where a proxy statement, correct at the time of its issuance, has become misleading as a result of subsequent developments, cf. Central Foundry Co. v. Gondelman, 166 F.Supp. 429 (S.D.N.Y.1958), although the words of the Rule are not exactly apt to that end. But this is strong medicine, especially when administered the very day of the stockholders’ meeting, and a correspondingly strong showing of materiality is required. We find that lacking here. We need not go so far as to say that if the Committee would have been limited to an abject peccavimus, this could not have had significant effect — although even on that hypothesis it is hard to see what interest GTC’s stockholders would have had in Industries’ violation of a statute designed to protect the stockholders of Fund. But the Committee would not have been so confined. It would have been entitled to say that the SEC’s decision was one of first impression, see 399 F.2d at 396; that counsel for Industries believed it to be without warrant in law; and that its legality would be tested in the courts. Nine weeks later the Committee could have reported to the stockholders that a United States District Court had ruled that Industries was right. While we reversed that decision on July 31, our opinion rejected any suggestion of deliberate flouting of the Investment Company Act, and that too could have been stated. Under all these circumstances the SEC’s holding of a violation was not sufficiently material to demand a further submission to GTC’s stockholders and an adjournment of the annual meeting called for that very day. II. The Action Under § 17(d) of the Investment Company Act and Rude 10b-5 As noted in our opinion in SEC v. Talley Industries, Inc., supra, GTC had earlier brought an action in the Southern District of New York complaining of the same violation of § 17(d) of the Investment Company Act that was later to constitute the subject of the" }, { "docid": "13716849", "title": "", "text": "GTC common stock for either one share of Industries common stock or one share of Industries Preferred convertible into one share of Industries common. It received SEC approval on February 10, 1970. “A meeting of GTC stockholders of record as of April 13, 1970, was called for May 14, 1970, to vote on the merger. Prior to the meeting these stockholders received management’s proxy statement and a form soliciting proxies for approval of the merger. The merger was approved and shortly thereafter GTC was merged into Industries. “The plaintiffs charge that from the time Industries first started to buy GTC stock in December of 1967, Industries was engaged in a scheme to arrange a merger which would be inequitable to GTC and its shareholders. There were two main parts to this scheme. The first involved manipulation of the price of GTC stock downward and Industries stock upward so that GTC shareholders would receive less than fair value when they exchanged their stock for Industries stock. Plaintiffs claim that this manipulation began shortly after the Industries slate was elected to the GTC board of directors and continued until the time of the merger. “The second part of the scheme involved the management proxy material which the plaintiffs claim contained numerous false and misleading statements. Plaintiffs charge that the proxy-statement overstated Industries’ earnings before taxes, net earnings, earnings per share, and stockholders’ equity for the nine months ending December 31, 1969, and that the statement failed to disclose decreases in cash flow and working capital that occurred in fiscal 1970.” When we discuss the classes sought to be represented, we shall supply more detail below. The plaintiffs claim to represent two classes — the “Proxy Fraud Class” which includes all GTC shareholders as of April 13, 1970 (the merger meeting record date) who were entitled to receive the proxy material for the May 14 stockholders meeting; and the “Stock Fraud Class” which includes all persons who purchased or sold GTC common stock between the time Industries first bought GTC stock on December 27, 1967 and the date of the merger in 1970" }, { "docid": "23365057", "title": "", "text": "Insider Trading in Corporate Securities: A Survey of Hazards and Disclosure Obligations under Rule 1 10b-5, 62 Nw.U.L.Rev. 809, 815 (1968); Bromberg, Securities Law, Fraud, SEC Rule 10b-5, 119, 123-24, 170 (New Matter) (1968). Indeed, secrecy had long been the hallmark of most stock acquisition programs, at least in their initial stages. The very fact that Congress has recently thought it desirable to pass new legislation amending §§13 and 14 of the Securities Exchange Act to require disclosure under certain circumstances, P.L. 90-439, 82 Stat. 454, ap proved July 29,1968, is an indication that no such obligation previously existed. Cf. Mutual Shares Corp. v. Genesco, Inc., 384 F.2d 540, 544 (2 Cir. 1967). Furthermore, the complaint, filed after the special bid of February 19 and Industries’ subsequent stock buying program, did not allege that further purchases were in contemplation, and by that time Industries’ intentions had been broadcast. Affirmed. . Rule 14a-9. False or Misleading Statements. . GTC’s criticism of the appellation “Independent Stockholders’ Committee” is captious. The Proxy Statement made clear that the Committee was acting for Industries; its “independence” was only of the management of GTC. With respect to other criticisms we rest on Judge Tyler’s discussion. . (b) The fact that a proxy statement, form of proxy or other soliciting material has been filed with or examined by the Commission shall not be deemed a finding by the Commission that such material is accurate or complete or not false or misleading, or that the Commission has passed upon the merits of or approved any statement contained therein or any matter to be acted upon by security holders. No representation contrary to the foregoing shall be made. peal from Judge Tyler’s order indicates that Industries filed the appropriate report. . While the complaint also alleged failure by Industries to comply with § 16(a) of the Securities Exchange Act, this point has not been pressed; the record on ap- . The Chairman of the SEC testified at the Senate hearing on the bill that became the new law that “[t]he Commission is of a view that the legislation here" }, { "docid": "23365050", "title": "", "text": "their proxies from the Committee or to grant them to GTC. Rather a stockholder impressed with the desirability of a change in management of GTC and of its merger with Industries would have been more likely to give a proxy for Industries’ slate if he had known that an important mutual fund had enough confidence in Industries to own 9% of its stock and thus presumably would support its efforts. Neither in its letters of March 28 to stockholders nor in any other communication did GTC make any mention of this omission; the point is apparently deemed more important for litigation than it was for information. Finally, although this makeweight is scarcely needed, we think that, despite Rule 14a-9(b), some force can be given to the SEC’s clearance of the Proxy Statement in a case such as this where the omissions were of facts well known to it as a result of the contemporaneous Rule 17d-l application. See Dunn v. Deeca Records, Inc., 120 F.Supp. 1 (S.D.N.Y.1954); Mack v. Mishkin, 172 F.Supp. 885, 888 (S.D.N.Y.1959); Kauder v. United Board & Carton Corp., 199 F.Supp. 420, 423-424 (S.D.N.Y.1961). Contrast J. I. Case Co. v. Borak, supra, 377 U.S. at 432-433, 84 S.Ct. at 1555, 12 L.Ed.2d 423. We thus conclude that Judge Tyler was right in denying GTC’s initial application for an injunction. On April 22, the day of the stockholders’ meeting, GTC brought a further application on for hearing. The crux of this was the SEC’s decision of April 19 that Industries had entered into a joint arrangement with Fund concerning acquisition of GTC stock for which approval under Rule 17d-l ought to have been but had not been secured. GTC claimed that “The fact that the joint arrangement was in violation of law was of overwhelming importance and would have materially crippled the appeal” of the Proxy Statement, and that “At the least * * * this Court should adjourn the Annual Meeting, vacate the proxies obtained by defendants and order a resolicitation based on a complete, truthful and accurate disclosure.” Judge Tyler denied this application also. We assume" }, { "docid": "22050809", "title": "", "text": "had been endeavoring to get the Studebaker management to agree to certain changes in its board of directors and had announced their intention to solicit proxies for the forthcoming annual meeting if the request was not met; and that when these talks had broken down, he had requested access to the stockholders list and had been refused. Studebaker’s affidavit and subsequent complaint allege that Gittlin obtained the authorization from the 42 other stockholders in violation of the Proxy Rules issued by the SEC under § 14(a) of the Securities Exchange Act. Specifically the company contends that Gittlin claimed to be holding the authorizations as early as March 14, and that at that time he had made no filing of proxy material with the SEC. Consequently, Studebaker claims, the authorizations were necessarily obtained in violation of Rules 14a-3 and 14a-6, the former prohibiting solicitation in the absence of a proxy statement containing specified information and the latter requiring that preliminary copies of the proxy material be filed with the SEC at least ten days prior to the date definitive copies of such material are first sent or given to security holders unless the Commission authorizes a shorter period. Finding these allegations to be sustained, Judge Cannella enjoined use of the authorizations in the state court proceeding. Gittlin attacks the injunction on a number of grounds, in addition to the one on which we have already passed. He challenges Studebaker’s standing to enjoin violation of the Proxy Rules by a stockholder, contends that the Rules do not include authorizations for the limited purpose of exercising a right of inspection provided by state law, argues that the order violated the anti-injunction statute, 28 U.S.C. § 2283, and urges finally that Studebaker’s application was wanting in equity because no showing had been made of irreparable harm. The first point rests on the statement in Howard v. Furst, 238 F.2d 790, 793 (2 Cir.1956), cert. denied, 353 U.S. 937, 77 S.Ct. 814, 1 L.Ed.2d 759 (1957): “We find nothing in the language of Section 14(a) or in the legislative history of the Securities Exchange Act" }, { "docid": "9889857", "title": "", "text": "correct any statement in any earlier communication with respect to the solicitation of a proxy for the same meeting or subject matter which has become false or misleading. . See Ash v. LFE Corp., 525 F.2d 215 (3d Cir. 1975). There the court held that an annual meeting proxy statement recommending, inter alia, approval of a pension plan was not materially deficient in violation of Rule 14a-9 for its failure to detail the participation of interested, beneficiary directors in the development of the plan. The interest of the directors in the proposal was revealed by the section of the proxy statement detailing their remuneration, and as the court pointed out, “any rational stockholder must have known that the corporate management had a hand in [the plan’s] preparation.” Id. at 218. Similarly, the proxy statement here revealed the number of interested directors and the extent of their interest and it must be presumed that rational stockholders would assume that these interested directors participated in the disputed decisions; in that light, the exact number of voting directors becomes immaterial. . Not only did the Board have no obligation to disclose that the Committee was not completely independent, but also it had no obligation to disclose even that the independence of the Committee might be a matter of dispute. The following section of the Supreme Court’s opinion in TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 96 S.Ct. 2120, 48 L.Ed.2d 757 (1976) is controlling: Nor can we say that it was materially misleading as a matter of law for TSC and National to have omitted reference to SEC filings indicating that National “may be deemed to be a parent of TSC.” As we have already noted, both the District Court and the Court of Appeals concluded, in denying summary judgment on the Rule 14a-3 claim, that there was a genuine issue of fact as to whether National actually controlled TSC at the time of the proxy solicitation. We must assume for present purposes, then, that National did not control TSC. On that assumption, TSC and National obviously had no duty to" }, { "docid": "23365051", "title": "", "text": "Kauder v. United Board & Carton Corp., 199 F.Supp. 420, 423-424 (S.D.N.Y.1961). Contrast J. I. Case Co. v. Borak, supra, 377 U.S. at 432-433, 84 S.Ct. at 1555, 12 L.Ed.2d 423. We thus conclude that Judge Tyler was right in denying GTC’s initial application for an injunction. On April 22, the day of the stockholders’ meeting, GTC brought a further application on for hearing. The crux of this was the SEC’s decision of April 19 that Industries had entered into a joint arrangement with Fund concerning acquisition of GTC stock for which approval under Rule 17d-l ought to have been but had not been secured. GTC claimed that “The fact that the joint arrangement was in violation of law was of overwhelming importance and would have materially crippled the appeal” of the Proxy Statement, and that “At the least * * * this Court should adjourn the Annual Meeting, vacate the proxies obtained by defendants and order a resolicitation based on a complete, truthful and accurate disclosure.” Judge Tyler denied this application also. We assume that Rule 14a-9 may be read as authorizing a court to require a further statement and an opportunity to revoke proxies where a proxy statement, correct at the time of its issuance, has become misleading as a result of subsequent developments, cf. Central Foundry Co. v. Gondelman, 166 F.Supp. 429 (S.D.N.Y.1958), although the words of the Rule are not exactly apt to that end. But this is strong medicine, especially when administered the very day of the stockholders’ meeting, and a correspondingly strong showing of materiality is required. We find that lacking here. We need not go so far as to say that if the Committee would have been limited to an abject peccavimus, this could not have had significant effect — although even on that hypothesis it is hard to see what interest GTC’s stockholders would have had in Industries’ violation of a statute designed to protect the stockholders of Fund. But the Committee would not have been so confined. It would have been entitled to say that the SEC’s decision was one of" }, { "docid": "23365053", "title": "", "text": "first impression, see 399 F.2d at 396; that counsel for Industries believed it to be without warrant in law; and that its legality would be tested in the courts. Nine weeks later the Committee could have reported to the stockholders that a United States District Court had ruled that Industries was right. While we reversed that decision on July 31, our opinion rejected any suggestion of deliberate flouting of the Investment Company Act, and that too could have been stated. Under all these circumstances the SEC’s holding of a violation was not sufficiently material to demand a further submission to GTC’s stockholders and an adjournment of the annual meeting called for that very day. II. The Action Under § 17(d) of the Investment Company Act and Rude 10b-5 As noted in our opinion in SEC v. Talley Industries, Inc., supra, GTC had earlier brought an action in the Southern District of New York complaining of the same violation of § 17(d) of the Investment Company Act that was later to constitute the subject of the action by the SEC. The complaint also alleged violation of Rule 10b-5, issued under the Securities Exchange Act of 1934, in that the defendants had purchased GTC stock without disclosing the extent of their associations or their full intentions with respect to merger and the like; stockholders had thereby been induced to part with stock at less than they could ultimately have obtained. Judge Bryan dismissed both portions of the complaint for lack of standing on the part of GTC. We have no occasion to pass on the correctness of the holding that a company whose shares are being acquired in a transaction for which § 17(d) as implemented by Rule 17d-l requires SEC approval, lacks standing to complain. The relief sought by GTC paralleled that requested in the SEC’s action in which GTC was joined as a defendant. Our ruling on the appeal in that case that the court could not properly require Industries and Fund to withdraw any votes cast at the stockholders’ meeting or enjoin any further voting of such shares is" }, { "docid": "1905726", "title": "", "text": "the same meeting or subject matter which has become false or misleading.” Since the subject of the November 21 stockholders meeting was the election of directors—the only purpose for which disclosure of the amount of Lafayette stock held by Lafayette’s directors was required —it was unnecessary for Lafayette to update its proxy materials in this regard. The only subject remaining on the agenda at the adjourned stockholders meeting was Proposal No. 2, which did not directly relate to the election of directors. Thus, we must deny Jewel-cor’s motion on this ground. Jewelcor also contends that Lafayette’s November 27th proxy materials were false and misleading in stating that 61 percent of Lafayette’s shareholders had voted for Proposal No. 2, when in fact no vote had been taken. Although perhaps Lafayette could have done a better job of draftsmanship, we do not find that this information was materially misleading, especially in light of the fact that Lafayette also disclosed that approval of Proposal No. 2 required the affirmative vote of 66% percent of Lafayette’s shareholders. We recognize that Rule 14a-9 includes as an example of what may be misleading within the meaning of the rule “claims made prior to a meeting regarding the results of a solicitation.” However, we do not find that Lafayette’s statement was clearly misleading in the present context. Moreover, it has been held in a similar situation that “[t]here is nothing prohibitory of a reporting in proxy material of the existing fact or status of the solicitation.” Layritz v. Condec Corp. (S.D.Ohio 1967) (Slip Op., at 33). Finally, Jewelcor maintains that Lafayette’s November and December proxy materials were materially false and misleading for failing to amend the October proxy materials and inform shareholders that Lafayette believed that Jewelcor was actually attempting a takeover. Since Lafayette’s February proxy materials informed its stockholders that it believed Jewelcor planned a takeover, any prior misinformation had been corrected before any harm had been done. See General Time Corp. v. Talley Industries, Inc., 283 F.Supp. 832, 835 (S.D.N.Y.), aff’d 403 F.2d 159 (2d Cir. 1968), cert. denied, 383 U.S. 1026, 89 S.Ct. 631," }, { "docid": "13716851", "title": "", "text": "(shortly after the merger meeting on May 14). The first claim in the complaint charges that the Merger Proxy Statement was materially false and misleading. It is brought on behalf of the Proxy Fraud Class alone. The violations asserted are of Sections 10(b), 14 (a), 20(c) and 29(b) of the Securities Exchange Act of 1934 and Rules 10b-5 and 14a-9 promulgated thereunder and Sections 11, 12(a), 15 and 17(a) of the Securities Act of 1933. The fifth claim is similar; it alleges common law fraudulent breach of fiduciary duty by all of the defendants and is based on pendent jurisdiction. The second claim is brought on behalf of both the Proxy Fraud and the Stock Fraud Classes. It alleges a general scheme under which, commencing in December 1967, Industries in concert with other defendants, purchased or controlled about 35% of GTC common stock and created a GTC stockholders’ committee to solicit proxies for the GTC 1968 annual meeting, announcing the day before the meeting that, if elected, its nominees would merge GTC into Industries on the basis of one share of GTC common stock for one share of Industries preferred stock convertible into the equivalent of 1% shares of Industries common stock (the “1% Proposal”). Industries’ slate were all elected and took office on January 13, 1969. It is charged that, thereupon, Industries embarked upon a scheme, aided _ and abetted by each of the defendants, to manipulate the respective stock prices of GTC and Industries by depreciating the business and prospects of GTC, thus depressing its market price, while overstating the business and prospects of Industries, thus artificially inflating the market price of Industries stock on national exchanges and thereby enabling Industries to merge GTC into itself at a price below GTC’s fair value. It is charged that Industries withdrew the lVs Proposal and in order to inflate the price of Industries stock falsely attributed great value to new products, such information permitting brokers to “tout” Industries stock in excess of its true value. It is claimed that Lehman Brothers (and its partner, Osborn), financial advisers to GTC, and" }, { "docid": "1905725", "title": "", "text": "is not actionable, whether or not it is “disclosed,” unless the impurities are translated into actionable deeds or omissions both objective and external. Stedman v. Storer, supra, 308 F.Supp. at 887. Accordingly, we conclude that Jewelcor is not entitled to injunctive relief on this point. Jewelcor also urges that the Lafayette directors’ December and February proxy materials failed to update the October proxy materials to include information regarding subsequent stock purchases by defendants. Jewelcor contends that this omission was material, since the defendants, they say, were seeking to entrench themselves in control of the company and were contemplating a tender offer for Lafayette’s stock. Lafayette, on the other hand, argues that this information was only relevant to the subject of the election of directors, a matter which was acted upon at the stockholders meeting on November 21. We agree with Lafayette that this information was not required to be reported. Rule 14a-9 requires updating of all proxy solicitations to “correct any statement in any earlier communication with respect to the solicitation of a proxy for the same meeting or subject matter which has become false or misleading.” Since the subject of the November 21 stockholders meeting was the election of directors—the only purpose for which disclosure of the amount of Lafayette stock held by Lafayette’s directors was required —it was unnecessary for Lafayette to update its proxy materials in this regard. The only subject remaining on the agenda at the adjourned stockholders meeting was Proposal No. 2, which did not directly relate to the election of directors. Thus, we must deny Jewel-cor’s motion on this ground. Jewelcor also contends that Lafayette’s November 27th proxy materials were false and misleading in stating that 61 percent of Lafayette’s shareholders had voted for Proposal No. 2, when in fact no vote had been taken. Although perhaps Lafayette could have done a better job of draftsmanship, we do not find that this information was materially misleading, especially in light of the fact that Lafayette also disclosed that approval of Proposal No. 2 required the affirmative vote of 66% percent of Lafayette’s shareholders. We recognize" }, { "docid": "23365042", "title": "", "text": "FRIENDLY, Circuit Judge: These appeals are two more chapters in a controversy arising from the efforts of Talley Industries, Inc. (Industries) to displace the management of General Time Corporation (GTC) and ultimately to acquire or merge with it. We have dealt with other aspects of this in SEC v. Talley Industries, Inc., decided July 31, 1968, 399 F.2d 396, and will assume familiarity with that opinion. I. The Action Under the Proxy Rules As recounted in our earlier opinion, an “Independent Stockholders’ Committee” organized by Industries wished to solicit proxies for the election of ten nominees as directors of GTC at its annual meeting on April 22, 1968, but the SEC staff refused clearance unless Industries filed an application for approval of what the staff considered a joint participation for the acquisition of GTC stock by Industries and American Investors Fund, Inc. (Fund) pursuant to Rule 17d-l under the Investment Company Act of 1940. On March 26 Industries filed such an application, joined in by Fund. The application made a detailed statement of the facts but claimed there was no joint participation within § 17(d) of the Invest ment Company Act. Industries immediately gave GTC a copy of this application. The SEC staff then cleared a proxy statement of the Committee, which was issued under date of March 27. This Proxy Statement made plain, among other things, that two of the nominees for directors of GTC were officers and directors of Industries; that Industries owned 257,937 shares, or approximately 12.2%, of GTC’s stock; that Industries and certain of its officers and directors, as well as M. Kimelman & Co. and its partners, intended to solicit proxies; that all expenditures for solicitation would be paid by Industries; that Fund owned 210,000 shares (9.89%) of GTC’s stock; and that Fund had filed a Schedule 14B statement with the SEC but had disclaimed any role in proxy solicitation or any arrangement or understanding with respect to the giving or withholding of a proxy. The Statement placed GTC’s stockholders on notice that “Talley Industries, Inc. has announced that its present intention is to propose" }, { "docid": "23365049", "title": "", "text": "where to get it. The claim that GTC stockholders furnished with the facts might have drawn a conclusion of illegality is rather far-fetched, and is further deprived of force by the considerations developed later in this opinion. The failure to mention Fund’s 9% ownership of Industries is a shade more troubling since it might be said that recital of this was necessary to overcome an impression of lack of financial relationship between Industries and Fund created by the silence on that score. While the reference to the § 17(d) application would apprise the experts of a financial relationship, most stockholders are not in that category. Conceivably also a statement of Fund’s 9 % ownership in Industries might have led a stockholder to doubt whether the statement that there were no arrangements or understandings with Fund about the giving of its proxy was the whole truth. But even if we assume all this in GTC’s favor, we cannot see any real likelihood that a statement of Fund’s interest in Industries would have led stockholders to withhold their proxies from the Committee or to grant them to GTC. Rather a stockholder impressed with the desirability of a change in management of GTC and of its merger with Industries would have been more likely to give a proxy for Industries’ slate if he had known that an important mutual fund had enough confidence in Industries to own 9% of its stock and thus presumably would support its efforts. Neither in its letters of March 28 to stockholders nor in any other communication did GTC make any mention of this omission; the point is apparently deemed more important for litigation than it was for information. Finally, although this makeweight is scarcely needed, we think that, despite Rule 14a-9(b), some force can be given to the SEC’s clearance of the Proxy Statement in a case such as this where the omissions were of facts well known to it as a result of the contemporaneous Rule 17d-l application. See Dunn v. Deeca Records, Inc., 120 F.Supp. 1 (S.D.N.Y.1954); Mack v. Mishkin, 172 F.Supp. 885, 888 (S.D.N.Y.1959);" }, { "docid": "23365047", "title": "", "text": "384 U.S. 28, 86 S.Ct. 1250, 16 L.Ed.2d 335 (1966). No one knows just what motivates stockholders in choosing between slates. Those experienced in contested elections are likely to doubt whether proxy statements are read with much precision, and determination of the influence of a particular omission or even misstatement is almost sheer guesswork. The past record of the management, the market performance of the stock, the lustre of the opposition, and the recommendations of brokers and investment advisers based on such considerations, are likely to be much more influential than tired-eye scrutiny of proxy statements. Still, issuers of such statements should be held to fair accuracy even in the hurly-burly of election contests. The test, we suppose, is whether, taking a properly realistic view, there is a substantial likelihood that the misstatement or omission may have led a stockholder to grant a proxy to the solicitor or to withhold one from the other side, whereas in the absence of this he would have taken a contrary course. This latter circumstance — that there is another side — has a bearing on materiality in a case where, as here, the facts have been disclosed to it in ample time for comment. Its failure to correct alleged misstatements or rectify claimed omissions is some evidence that it does not regard them as material — just as a lawyer’s failure to object to a jury instruction affords some indication that he did not then regard it as prejudicial, cf. United States v. Kahaner, 317 F.2d 459, 478-479 (2 Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 74, 11 L.Ed.2d 65 (1963). We fail to see how the details concerning the discussions between Industries and Fund that were omitted from the proxy statement were “necessary in order to make the statements therein not false or misleading.” The Proxy Statement did disclose that something had occurred which the SEC might regard as a joint arrangement although Industries and Fund did not so consider it, and that an application had been filed with the Commission; if any GTC stockholder wanted more detail, he would know" }, { "docid": "22207690", "title": "", "text": "the claim that the proxy statement was false and misleading in a material respect. The principal claim in that regard was that the statement failed to give any information about the price the selling corporation stockholders would realize. Conceding that precision in the proxy statement would not have been possible, since the price was not firmly fixed until the evening before the sale, which was after the meeting of the Fund’s stockholders, appellants say the statement could have given some notion of what the sellers contemplated, and, more specifically, that it could and should have been amended after October 13, when the principal underwriters reached an agreement with the selling shareholders that the price to the public would be in a range of $20 to $21 per share. While we tend to agree that more information could and should have been given, we doubt that a court would find the proxy statement omitted “to state any material fact necessary in order to make the statements therein not false or misleading,” SEC Rule 14a-9(a), so as to support a recovery. The financial statements of the Corporation which were annexed to the proxy statement showed that the Corporation had earned 61 cents per share in 1964 and 44 cents per share in the first half of 1965. It required no great acumen for a shareholder in the Fund to understand that the selling shareholders were not going to part with such valuable shares at their net asset value of $2.66. The stockholders of the Fund were thus put on notice of the essential point that the sellers expected to realize proceeds considerably in excess of net asset value; if they had wished more nearly precise figures, they could have inquired. We thus agree with the district court that if the proxy statement had been the sole issue, the case would not have been settled except perhaps for its nuisance value, and that no significant fraction of the $5,000,000 settlement must be allocated to this claim. On the other hand, the appellees, both defendants and plaintiffs, acknowledge that the claim with respect to" }, { "docid": "23365048", "title": "", "text": "another side — has a bearing on materiality in a case where, as here, the facts have been disclosed to it in ample time for comment. Its failure to correct alleged misstatements or rectify claimed omissions is some evidence that it does not regard them as material — just as a lawyer’s failure to object to a jury instruction affords some indication that he did not then regard it as prejudicial, cf. United States v. Kahaner, 317 F.2d 459, 478-479 (2 Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 74, 11 L.Ed.2d 65 (1963). We fail to see how the details concerning the discussions between Industries and Fund that were omitted from the proxy statement were “necessary in order to make the statements therein not false or misleading.” The Proxy Statement did disclose that something had occurred which the SEC might regard as a joint arrangement although Industries and Fund did not so consider it, and that an application had been filed with the Commission; if any GTC stockholder wanted more detail, he would know where to get it. The claim that GTC stockholders furnished with the facts might have drawn a conclusion of illegality is rather far-fetched, and is further deprived of force by the considerations developed later in this opinion. The failure to mention Fund’s 9% ownership of Industries is a shade more troubling since it might be said that recital of this was necessary to overcome an impression of lack of financial relationship between Industries and Fund created by the silence on that score. While the reference to the § 17(d) application would apprise the experts of a financial relationship, most stockholders are not in that category. Conceivably also a statement of Fund’s 9 % ownership in Industries might have led a stockholder to doubt whether the statement that there were no arrangements or understandings with Fund about the giving of its proxy was the whole truth. But even if we assume all this in GTC’s favor, we cannot see any real likelihood that a statement of Fund’s interest in Industries would have led stockholders to withhold" }, { "docid": "14298729", "title": "", "text": "proxy materials and shareholder reports mailed by DASA in 1972 to its stockholders in connection with its annual meeting were materially false and therefore violative of § 14(a) and the SEC Rule 14a-9 prohibition against misleading proxy solicitations. Claim two asserts with somewhat greater specificity that the DASA annual report discussing 1971 as well as the DASA financial statements covering 1971 were also materially misleading and therefore violative of § 14(a) and SEC Rule 14a-3(b)(2). The implication of these first two assertions is that the 1972 DASA stockholder meeting was illegal since the proxies used therein were fraudulently solicited in a manner contrary to federal law. Judge Griesa dismissed these two claims on the ground that the subsequent DASA stockholder meetings in 1973 (and, by implication, 1974) rendered the issue of the 1972 meeting moot. Whatever violations may have occurred in the solicitation of proxies for the 1972 meeting, Judge Griesa held, the officers elected then have fulfilled their terms in office (and subsequently been re-elected in 1973 and 1974). The year 1972, everyone would agree, is over, and it is therefore impossible to enjoin the meeting already held. Both sides apparently acknowledge that the issue of the 1972 meeting and proxy solicitation materials would not be moot if plaintiffs asserted a claim for monetary damages stemming from the conduct and preparation of the 1972 meeting. Since, however, we cannot enjoin a meeting already held, the Browning group in effect merely seeks declaratory relief (i. e., a declaration that the 1972 meeting was conducted illegally). Judge Griesa therefore held that continuing with the lawsuit (as it pertains to claims one and two) would be an empty exercise resulting, at most, in a judicial declaration of no practical import. Appellants contend that claims one and two should be reinstated because of the broad, prophylactic purposes underlying private enforcement of the federal proxy solicitation statutes. In support of its position, the Browning Committee cites the first Supreme Court decision to recognize a private cause of action for damages sustained from a violation of § 14(a), J. I. Case Co. v. Borak, 377" }, { "docid": "14298728", "title": "", "text": "the proxies for the 1972 DASA annual meeting were solicited fraudulently in violation of § 14(a) of the Securities Exchange Act of 1934 and two SEC regulations promulgated thereunder, SEC Rule 14a — 9, 17 C.F.R. § 240.14a-9 and Rule 14a-3(b)(2), 17 C.F.R. § 240.14a-3(b)(2). The Browning group did not assert claims for monetary damages from the conduct of the 1972 DASA shareholders’ meeting. The Browning Committee merely sought, in claims one and two, a declaration from the district court that the 1972 meeting had been conducted illegally as a result of the allegedly fraudulent proxy solicitation. District Judge Griesa, at defendant’s urging, ruled that claims one and two were mooted by the subsequent shareholder meeting in 1973. The judge therefore dismissed the § 14(a) claims on the ground that, absent a request for monetary damages or injunctive relief, the claims did not pose a justiciable controversy. The plaintiffs, on their own behalf and on behalf of the Browning Committee, appeal to this court. II. The § 14(a) Claims Plaintiffs’ claim one asserts that various proxy materials and shareholder reports mailed by DASA in 1972 to its stockholders in connection with its annual meeting were materially false and therefore violative of § 14(a) and the SEC Rule 14a-9 prohibition against misleading proxy solicitations. Claim two asserts with somewhat greater specificity that the DASA annual report discussing 1971 as well as the DASA financial statements covering 1971 were also materially misleading and therefore violative of § 14(a) and SEC Rule 14a-3(b)(2). The implication of these first two assertions is that the 1972 DASA stockholder meeting was illegal since the proxies used therein were fraudulently solicited in a manner contrary to federal law. Judge Griesa dismissed these two claims on the ground that the subsequent DASA stockholder meetings in 1973 (and, by implication, 1974) rendered the issue of the 1972 meeting moot. Whatever violations may have occurred in the solicitation of proxies for the 1972 meeting, Judge Griesa held, the officers elected then have fulfilled their terms in office (and subsequently been re-elected in 1973 and 1974). The year 1972, everyone would" }, { "docid": "13716850", "title": "", "text": "slate was elected to the GTC board of directors and continued until the time of the merger. “The second part of the scheme involved the management proxy material which the plaintiffs claim contained numerous false and misleading statements. Plaintiffs charge that the proxy-statement overstated Industries’ earnings before taxes, net earnings, earnings per share, and stockholders’ equity for the nine months ending December 31, 1969, and that the statement failed to disclose decreases in cash flow and working capital that occurred in fiscal 1970.” When we discuss the classes sought to be represented, we shall supply more detail below. The plaintiffs claim to represent two classes — the “Proxy Fraud Class” which includes all GTC shareholders as of April 13, 1970 (the merger meeting record date) who were entitled to receive the proxy material for the May 14 stockholders meeting; and the “Stock Fraud Class” which includes all persons who purchased or sold GTC common stock between the time Industries first bought GTC stock on December 27, 1967 and the date of the merger in 1970 (shortly after the merger meeting on May 14). The first claim in the complaint charges that the Merger Proxy Statement was materially false and misleading. It is brought on behalf of the Proxy Fraud Class alone. The violations asserted are of Sections 10(b), 14 (a), 20(c) and 29(b) of the Securities Exchange Act of 1934 and Rules 10b-5 and 14a-9 promulgated thereunder and Sections 11, 12(a), 15 and 17(a) of the Securities Act of 1933. The fifth claim is similar; it alleges common law fraudulent breach of fiduciary duty by all of the defendants and is based on pendent jurisdiction. The second claim is brought on behalf of both the Proxy Fraud and the Stock Fraud Classes. It alleges a general scheme under which, commencing in December 1967, Industries in concert with other defendants, purchased or controlled about 35% of GTC common stock and created a GTC stockholders’ committee to solicit proxies for the GTC 1968 annual meeting, announcing the day before the meeting that, if elected, its nominees would merge GTC into Industries on" } ]

[ { "docid": "3027771", "title": "", "text": "DEASY, Bankruptcy Judge. I. JURISDICTION AND STANDARD OF REVIEW The Bankruptcy Appellate Panel has jurisdiction of this appeal pursuant to 28 U.S.C. § 158(b). The Bankruptcy Court’s findings of fact are evaluated pursuant to the “clearly erroneous standard” of review and its conclusions with respect to the law are reviewed de novo. See Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 30 (1st Cir.1994). The Bankruptcy Court’s interpretation of 11 U.S.C. §§ 521 and 524 present questions of law. Its application of such statutory sections to the particular facts of this case poses a mixed question of law and fact, subject to the clearly erroneous standard, unless the Bankruptcy Court’s analysis was “infected with legal error.” Winthrop Old Farm Nurseries, Inc. v. New Bedford Inst. For Sav. (In re Winthrop Old Farm Nurseries, Inc.), 50 F.3d 72, 73 (1st Cir.1995) (quoting Williams v. Poulos, 11 F.3d 271, 278 (1st Cir.1993)). II. BACKGROUND On June 10, 1999, Jonathan L. Claflin (the “Debtor”) filed for bankruptcy under Chapter 7. As of the petition date, the Debtor owed BankBoston, N.A. (the “Bank”) approximately $5,600 pursuant to a 1996 loan obligation (the “Loan”). The Loan is secured by a 1993 Mercury Sable (the “Vehicle”). At the time of filing for bankruptcy, the Debtor was current on the Loan, having made 42 of the 60 monthly installment payments of $260.98 on a timely basis. The Debtor and the Bank executed a reaffirmation agreement with respect to the Loan (the “Agreement”). The Debt- or’s counsel opted not to sign a declaration stating, inter alia, that the Agreement does not impose an undue hardship on the Debtor, as envisioned by § 524(c)(3). It is apparently the Debtor’s counsel’s practice to rarely sign such declarations and instead pass “the burden of approving reaffirmation agreements onto the Bankruptcy Court.” See Appellee’s Brief at 1, n. 1. Because the Agreement was not accompanied by a § 524(c)(3) declaration, the Bankruptcy Court held a hearing on September 21, 1999 with respect to the question of whether the Agreement should be approved. See § 524(d). A careful reading of the" } ]

[ { "docid": "4583093", "title": "", "text": "final judgments, orders, and decrees pursuant to 28 U.S.C. §§ 158(a)(1) and (c)(1) or, with leave of the court, from interlocutory orders and decrees pursuant to 28 U.S.C. §§ 158(a)(3) and (c)(1). See In re Bank of New England Corp., 218 B.R. at 645. An order granting summary judgment is a final order for purposes of appeal “where no counts against any defendants remain.” Correia v. Deutsche Bank Nat’l Trust Co. (In re Correia), 452 B.R. 319, 322 (1st Cir. BAP 2011). Because no counts remain, the Order is final, and we have jurisdiction to consider this appeal. STANDARD OF REVIEW A bankruptcy court’s findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. See Lessard v. Wilton-Lyndeborough Coop. School Dist., 592 F.3d 267, 269 (1st Cir.2010). “A summary judgment decision is subject to de novo review.” Petrucelli v. D’Abrosca (In re D’Abrosca), BAP No. 10-062, 2011 WL 4592338, at *4 (1st Cir. BAP Aug. 10, 2011) (citations omitted). Similarly, “[w]hen considering whether a creditor has established the elements of § 523(a)(4),” courts apply a de novo standard of review. Ingram v. Womack (In re Womack), 122 Fed.Appx. 400, 401 (10th Cir.2005) (citation omitted). DISCUSSION I. The Summary Judgment Standard “In bankruptcy, summary judgment is governed in the first instance by Bankruptcy Rule 7056.” Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 762 (1st Cir.1994); see also Soto-Rios v. Banco Popular de Puerto Rico, 662 F.3d 112, 115 (1st Cir.2011). “By its express terms, the rule incorporates into bankruptcy practice the standards of Rule 56 of the Federal Rules of Civil Procedure.” In re Varrasso, 37 F.3d at 762 (citations omitted); see also Soto-Rios v. Banco Popular de Puerto Rico, 662 F.3d at 115; Fed. R. Bankr.P. 7056; Fed.R.Civ.P. 56. “It is apodictic that summary judgment should be bestowed only when no genuine issue of material fact exists and the movant has successfully demonstrated an entitlement to judgment as a matter of law.” In re Varrasso, 37 F.3d at 763 (citing Fed.R.Civ.P. 56(c)). “As to issues on which the non-movant has the" }, { "docid": "17589058", "title": "", "text": "2012); Milliren v. Milliren (In re Milliren), 387 B.R. 72, 74 (1st Cir. BAP 2008); see also Lomagno v. Salomon Bros. Realty Corp. (In re Lomagno), 429 F.3d 16 (1st Cir.2005). Accordingly, the order determining that the automatic stay did not apply in this instance is final for purposes of appeal, and we have appellate jurisdiction. STANDARD OF REVIEW A bankruptcy court’s findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. See Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 592 F.3d 267, 269 (1st Cir.2010). Generally, a bankruptcy court’s determination as to whether the automatic stay provisions of § 362 have been violated involves a question of law that is subject to de novo review. See In re Slabicki, 466 B.R. at 577 (citation omitted). Moreover, this appeal involves questions of statutory interpretation, which are reviewed de novo. See Coffin v. eCast Settlement Corp. (In re Coffin), 435 B.R. 780, 784-85 (1st Cir. BAP 2010) (citing United States v. Tobin, 552 F.3d 29, 32 (1st Cir.2009)). DISCUSSION Upon the filing of a bankruptcy petition, the Bankruptcy Code imposes an automatic stay prohibiting all collection and enforcement activities against the debtor, his property, and property of the estate. See 11 U.S.C. § 362(a). The automatic stay “creates ‘breathing room’ for debtors, at least temporarily, by foreclosing creditors from pursuing certain collection efforts against the debtor’s assets once a petition for bankruptcy has been filed.” Soto-Rios v. Banco Popular de P.R., 662 F.3d 112, 116 (1st Cir.2011). However, certain types of actions are excepted from the automatic stay, as set forth in § 362(b). See 11 U.S.C. § 362(b). Our concern is whether the actions taken by the debtor’s spouse fell within the “domestic support obligation” exceptions contained in the Bankruptcy Abuse and Prevention Act of 2005 (“BAPCPA”). The Bankruptcy Code contains three exceptions to the automatic stay with respect to domestic support obligations. First, the establishment or modification of an order for domestic support obligations is an exception to the automatic stay. 11 U.S.C. § 362(b)(2)(A)(ii). Second, “the collection of a domestic support obligation" }, { "docid": "10759043", "title": "", "text": "Hart (In re Hart), 271 B.R. 213 (10th Cir. BAP 2001) (citation omitted). Accordingly, we have jurisdiction to hear this appeal. STANDARD OF REVIEW A bankruptcy court’s findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. Lessard v. Wilton-Lyndeborough Coop. School Dist., 592 F.3d 267, 269 (1st Cir.2010); see also Watman v. Groman (In re Watman), 331 B.R. 502, 507 (D.Mass.2005), aff'd, 458 F.3d 26 (1st Cir.2006); Warchol v. Barry (In re Barry), 451 B.R. 654, 658 (1st Cir. BAP 2011). “Whether a debtor possessed the necessary wrongful intent under § 727(a)(2)(A) is a question of fact, subject to the clearly erroneous standard of review.” In re Barry, 451 B.R. at 658 (citation and internal quotations omitted). “A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Stomawaye Fin. Corp. v. Hill (In re Hill), 387 B.R. 339, 345 (1st Cir. BAP 2008) (citation and internal quotations omitted), aff'd 562 F.3d 29 (1st Cir.2009). “If the trial court’s account of the evidence is plausible, in light of the record viewed in its entirety, a reviewing court may not reverse, even if convinced that if it had been sitting as a trier of fact, it would have weighed the evidence differently.” Id. (citation omitted). In reviewing a bankruptcy court’s findings of fact, “ ‘due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses.’ ” In re Watman, 331 B.R. at 506 (citing Fed. R. Bankr.P. 8013; In re G.S.F. Corp., 938 F.2d 1467, 1474 (1st Cir.1991)). POSITIONS OF THE PARTIES Cox argues on appeal that because the seven badges of fraud articulated by the First Circuit in Marrama, swpra, are present in this case, the bankruptcy court clearly erred in finding that Villani lacked the requisite intent under § 727(a)(2)(A). Accordingly, he asks the Panel to reverse the Judgment of the bankruptcy court. Villani counters that because Cox failed to" }, { "docid": "13258039", "title": "", "text": "for reconsideration which the court denied as untimely. Thereafter, the court entered final judgment in favor of Chase on all counts of the complaint and this appeal followed. On appeal, the parties reiterate the arguments presented below. JURISDICTION A bankruptcy appellate panel is “duty-bound” to determine its jurisdiction before proceeding to the merits, even if not raised by the litigants. Boylan v. George E. Bumpus, Jr. Constr. Co., Inc. (In re George E. Bumpus, Jr. Constr. Co., Inc.), 226 B.R. 724, 725-26 (1st Cir. BAP 1998) (quoting Fleet Data Processing Corp v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998) (internal quotations omitted)). A panel may hear appeals from “final judgments, orders, and decrees [pursuant to 28 U.S.C. § 158(a)(1) ] or with leave of the court, from interlocutory orders and decrees [pursuant to 28 U.S.C. § 158(a)(3) ].” In re Bank of New England Corp., 218 B.R. at 645. “An order granting summary judgment, where no counts remain, is a final order.” DeGiacomo v. Traverse (In re Traverse), 485 B.R. 815, 817 (1st Cir. BAP 2013) (citation omitted). Thus, we have jurisdiction. STANDARD OF REVIEW A bankruptcy court’s findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. See Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 592 F.3d 267, 269 (1st Cir.2010). “We apply a de novo standard of review to orders granting summary judgment.” In re Traverse, 485 B.R. at 819. DISCUSSION I. The Summary Judgment Standard “Under Fed.R.Civ.P. 56, made applicable to bankruptcy proceedings pursuant to Fed. R. Bankr.P. 7056, ‘[i]t is apodictic that summary judgment should be bestowed only when no genuine issue of material fact exists and the movant has successfully demonstrated an entitlement to judgment as a matter of law.’ ” B.B. v. Bradley (In re Bradley), 466 B.R. 582, 585 (1st Cir. BAP 2012) (quoting Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 763 (1st Cir.1994)). The “mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment;" }, { "docid": "15295044", "title": "", "text": "and applied the rate allowable under the Equal Access to Justice Act, 28 U.S.C. § 2412, adjusted for inflation. The bankruptcy court reasoned that the Debtor should be awarded $4,836.00 for 39.90 hours spent during the period in which settlement was offered and rejected, and an additional $7,012.50 for 40 hours spent filing and prosecuting the Debtor’s complaint. With respect to the violation of the discharge injunction, the bankruptcy court held that a $3,000.00 sanction award was necessary “to prevent further violations.” The Debtor filed a timely Notice of Appeal on August 4, 2010, and the USDA filed a cross-appeal on August 17, 2010. JURISDICTION The Panel may hear appeals from “final judgments, orders and decrees” pursuant to 28 U.S.C. § 158(a)(1). Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). “A decision is final if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Id. at 646 (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945)). The Panel is duty-bound to determine its jurisdiction before proceeding to the merits even if not raised by the litigants. See Boylan v. George E. Bumpus, Jr. Constr. Co., Inc. (In re George E. Bumpus, Jr. Constr. Co., Inc.), 226 B.R. 724 (1st Cir. BAP 1998). “Generally, orders finding violations of the automatic stay and imposing sanctions are final appealable orders.” Heghmann v. Indorf (In re Heghmann), 316 B.R. 395, 400 (1st Cir. BAP 2004). Although the February 22, 2010 order establishing the USDA’s liability for violations of the automatic stay and discharge injunction was not final when it was entered, it became final upon the entry of the July 21, 2010 order when the bankruptcy court awarded damages for those violations because all outstanding issues were resolved. STANDARD OF REVIEW On appeal, the bankruptcy court’s findings of fact are reviewed pursuant to the clearly erroneous standard, and its conclusions of law de novo. See Lessard v. Wilton-Lyndeborough Coop. School Dist., 592 F.3d" }, { "docid": "3684435", "title": "", "text": "at the Property. The Bankruptcy Court held a nonevi-dentiary hearing and took the matter under advisement. Thereafter, the Bankruptcy Court issued the Order, accompanied by a memorandum of decision in which it concluded that Premier’s lien impaired the Debtor’s homestead exemption. The Bankruptcy Court noted that the cases Premier cited in support of its argument that the 2009 Homestead did not extend to Sullivan’s interest in the Property were inapposite because they “dealt with situations where the debtor was not the declarant of the homestead and attempted to invoke the protection of the other resident’s homestead.” This appeal followed. JURISDICTION A bankruptcy appellate panel may hear appeals from “final judgments, orders and decrees [pursuant to 28 U.S.C. § 158(a)(1)] or with leave of the court, from interlocutory orders and decrees [pursuant to 28 U.S.C. § 158(a)(3)].” Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). “A decision is final if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Id. at 646 (citations omitted). An order granting a motion to avoid a judicial lien is a final order. Mountain Peaks Fin. Servs., Inc. v. Shepard (In re Shepard), 328 B.R. 601, 603 (1st Cir. BAP 2005); Bruin Portfolio, LLC v. Leicht (In re Leicht), 222 B.R. 670, 671 (1st Cir. BAP 1998). STANDARD OF REVIEW The Panel reviews the Bankruptcy Court’s findings of fact for clear error and conclusions of law de novo. See Lessard v. Wilton-Lyndeborough Coop. School Dist., 592 F.3d 267, 269 (1st Cir.2010). As there are no facts in dispute, the issue is one of statutory construction, which the Panel reviews de novo. See Antognoni v. Basso (In re Basso), 397 B.R. 556, 562 (1st Cir. BAP 2008). DISCUSSION A debtor may exempt from the bankruptcy estate a homestead recognized as exempt under state law. See 11 U.S.C. § 522(b)(3); In re Basso, 397 B.R. 556. Here, the Debtor filed the 2009 Homestead pursuant to Mass. Gen. Laws ch. 188, § 1, and elected" }, { "docid": "649132", "title": "", "text": "order “only decides some intervening matter pertaining to the cause, and requires further steps to be taken in order to enable the court to adjudicate the cause on the merits.” Id. (quoting In re American Colonial Broad. Corp., 758 F.2d 794, 801 (1st Cir.1985)). Because a judg ment in an adversary proceeding is a “quintessential final order,” we thus have jurisdiction to review the bankruptcy court’s final judgment. See Lassman v. Keefe (In re Keefe), 401 B.R. 520, 523 (1st car. BAP 2009). STANDARD OF REVIEW A bankruptcy court’s findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. See Lessard v. Wilton-Lyndeborough Coop. School Dist., 592 F.3d 267, 269 (1st Cir.2010). The parties contest only the legal basis for the bankruptcy court’s ruling. We will review it de novo. DISCUSSION The bankruptcy court based its decision on the Massachusetts common law of trusts. It concluded that, notwithstanding the fact that the Aguilars never conveyed their interest in units 2 and 4 to the trust, they had nevertheless effectively conveyed all their rights in those units to Dexter and Betty long before their bankruptcy filing. Although the deed forms identified the Aguilars only as “trustees” of the condominium trust (and not as the individual co-owners they were), the court relied on Kaufman v. Federal Nat’l Bank, 287 Mass. 97, 191 N.E. 422 (1934), to determine that the conveyances were effective. In the bankruptcy court’s view, Kaufman stands for the proposition that when an individual signs a title instrument to property in his capacity as trustee of a trust, he conveys all right, title and interest he has in the property, whether he owns it as a trustee or as an individual. Because Kaufman is the linchpin of the court’s analysis, we will review its facts, and its import, in detail. In Kaufman, Celia Green was trustee of a real estate operating trust, of which no original beneficiaries had been named, and of which no shares had ever been issued. The Kaufman court found that no cestui trust had ever existed and that Ms." }, { "docid": "1855188", "title": "", "text": "foreclose. So I can understand a creditor, and I don’t think it’s harassment to continue advertising a postponement of the foreclosure sale rather than a cancellation with a multiple debtor as this debtor.... Creditor obviously hasn’t taken — hasn’t followed through with the foreclosure and has cancelled the foreclosure sale.... So I’m going to deny the motion of the [DJebtor. I just don’t find enough facts here to show that it was anything more than to preserve the status quo and justified on the fact that we’ve had multiple filings all dismissed affecting this property. The Debtor timely appealed the Sanctions Order. On appeal, the parties reiterate the arguments that they presented in the proceedings below. JURISDICTION A bankruptcy appellate panel is “ ‘duty-bound’ ” to determine its jurisdiction before proceeding to the merits, even if not raised by the litigants. Boylan v. George E. Bumpus, Jr. Constr. Co. (In re George E. Bumpus, Jr. Constr. Co.), 226 B.R. 724, 725-26 (1st Cir. BAP 1998) (quoting Fleet Data Processing Corp v. Branch (In re Bank of New Eng. Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998)). A bankruptcy appellate panel may hear appeals from “final judgments, orders, and decrees.” 28 U.S.C. § 158(a)(1). “Generally, a bankruptcy court order determining whether there was a violation of the automatic stay is a final order.” In re DeSouza, 493 B.R. 669, 671 (1st Cir. BAP 2013) (citations omitted). Accordingly, we have jurisdiction. STANDARD OF REVIEW [2,3] A bankruptcy court’s findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 592 F.3d 267, 269 (1st Cir.2010). “Generally, a bankruptcy court’s determination as to whether the automatic stay provisions of § 362 have been violated involves a question of law that is subject to de novo review.” In re DeSouza, 493 B.R. at 672 (citation omitted). DISCUSSION The question presented on appeal is two-fold: (1) whether § 362(c)(3)(A) terminated the automatic stay with regard to the Debtor, property of the Debtor, and property of the estate, or only with regard to" }, { "docid": "4583092", "title": "", "text": "with respect to Count II and to enter summary judgment in his favor in the amount of “$314,096.01 (including the $19,098.38 in union dues that the [bjankruptcy [cjourt found was nondis-ehargeable).” Conversely, Fahey argues that the bankruptcy court correctly found that he was not a fiduciary because he did not, and could not, exercise any control regarding the collection of unpaid contributions. He also contends that Raso failed to establish the element of defalcation, which requires a showing that funds were entrusted to Fahey. Accordingly, Fahey asks the Panel to affirm the Order with respect to Count II. JURISDICTION We are “ ‘duty-bound’ ” to determine whether we have jurisdiction before proceeding to the merits, even if not raised by the litigants. Boylan v. George E. Bumpus, Jr. Constr. Co., Inc. (In re George E. Bumpus, Jr. Constr. Co., Inc.), 226 B.R. 724, 725-26 (1st Cir. BAP 1998) (quoting Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998)). We may hear appeals from final judgments, orders, and decrees pursuant to 28 U.S.C. §§ 158(a)(1) and (c)(1) or, with leave of the court, from interlocutory orders and decrees pursuant to 28 U.S.C. §§ 158(a)(3) and (c)(1). See In re Bank of New England Corp., 218 B.R. at 645. An order granting summary judgment is a final order for purposes of appeal “where no counts against any defendants remain.” Correia v. Deutsche Bank Nat’l Trust Co. (In re Correia), 452 B.R. 319, 322 (1st Cir. BAP 2011). Because no counts remain, the Order is final, and we have jurisdiction to consider this appeal. STANDARD OF REVIEW A bankruptcy court’s findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. See Lessard v. Wilton-Lyndeborough Coop. School Dist., 592 F.3d 267, 269 (1st Cir.2010). “A summary judgment decision is subject to de novo review.” Petrucelli v. D’Abrosca (In re D’Abrosca), BAP No. 10-062, 2011 WL 4592338, at *4 (1st Cir. BAP Aug. 10, 2011) (citations omitted). Similarly, “[w]hen considering whether a creditor has established the" }, { "docid": "7740132", "title": "", "text": "to hear appeals from: (1) final judgments, orders and decrees; or (2) with leave of court, from certain interlocutory orders. 28 U.S.C. § 158(a); Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). A decision is considered final if it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment,” id. at 646 (citations and internal quotations omitted), whereas an interlocutory order “ ‘only decides some intervening matter pertaining to the cause, and ... requires further steps to be taken in order to enable the court to adjudicate the cause on the merits.’ ” Id. (quoting In re American Colonial Broad. Corp., 758 F.2d 794, 801 (1st Cir.1985)). “[A]n order denying relief from judgment under Rule 60(b) is generally considered a final ap-pealable order.” Balzotti v. RAD Invs., LLC (In re Shepherds Hill Dev. Co., LLC), 316 B.R. 406, 413 (1st Cir. BAP 2004). This appeal is from a final order. STANDARD OF REVIEW Appellate courts apply the clearly erroneous standard to findings of fact and de novo review to conclusions of law. See Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 592 F.3d 267, 269 (1st Cir.2010). They review a bankruptcy court’s denial of a motion for relief from judgment under Rule 60(b) for abuse of discretion. Eastern Sav. Bank, FSB v. LaFata (In re LaFata), 483 F.3d 13, 23 (1st Cir.2007) (citing Roger Edwards, LLC v. Fiddes & Son, Ltd., 427 F.3d 129, 132 (1st Cir.2005)); Aja v. Fitzgerald (In re Aja), 441 B.R. 173, 177 (1st Cir. BAP 2011) (citing In re Shepherds Hill, 316 B.R. at 413). A bankruptcy court abuses its discretion if it ignores “a material factor deserving of significant weight,” relies upon “an improper factor,” or makes “a serious mistake in weighing proper factors.” Indep. Oil & Chem. Workers of Quincy, Inc. v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir.1988). DISCUSSION I. Applicable Law The Code and Bankruptcy Rules govern the requirements for the filing and allowance of proofs of claim." }, { "docid": "15566871", "title": "", "text": "if the issue is not raised by the litigants. See In re George E. Bumpus, Jr. Constr. Co., 226 B.R. 724 (1st Cir. BAP 1998). A panel may hear appeals from “final judgments, orders and decrees [pursuant to 28 U.S.C. § 158(a)(1) ] or with leave of the court, from interlocutory orders and decrees [pursuant to 28 U.S.C. § 158(a)(3) ].” Fleet Data Processing Corp v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). “The Panel has repeatedly ruled that a judgment denying discharge under § 727 is a final order.” Gagne v. Fessenden (In re Gagne), 394 B.R. 219, 224 (1st Cir. BAP 2008) (citing Fagnant v. Cohen Steel Supply, Inc. (In re Fagnant), 337 B.R. 729 (1st Cir. BAP 2006)) (citations omitted). Accordingly, the Panel has jurisdiction to hear this appeal. STANDARD OF REVIEW A bankruptcy court’s findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. See Lessard v. Wilton-Lyndeborough Coop. School Dist., 592 F.3d 267, 269 (1st Cir.2010). In reviewing a judgment denying a debtor’s discharge under § 727(a)(2)(A), “the Panel applies the clearly erroneous standard to the bankruptcy court’s findings of fact, and the ‘inferences which the judge below has drawn from the facts of the record.’ ” Stornawaye Fin. Corp. v. Hill (In re Hill), 387 B.R. 339, 345 (1st Cir. BAP 2008) (quoting Boroff v. Tully (In re Tully), 818 F.2d 106 (1st Cir.1987)), aff'd, 562 F.3d 29 (1st Cir.2009). “Whether a debtor possessed the necessary wrongful intent under § 727(a)(2)(A) is a question of fact, subject to the clearly erroneous standard of review.” Womble v. Pher Partners (In re Womble), 299 B.R. 810 (N.D.Tex.2003) (citing First Tex. Sav. Ass’n v. Reed (In re Reed), 700 F.2d 986, 991-92 (5th Cir.1983)), aff'd, 108 Fed.Appx. 993 (5th Cir.2004). “If any reasonable view of the proof supports denial of the discharge (and absent any error of the law),” the Panel must uphold the bankruptcy court’s ruling. In re Tully, 818 F.2d at 109. DISCUSSION I. The Denial of Discharge Section" }, { "docid": "3684436", "title": "", "text": "to do but execute the judgment.’ ” Id. at 646 (citations omitted). An order granting a motion to avoid a judicial lien is a final order. Mountain Peaks Fin. Servs., Inc. v. Shepard (In re Shepard), 328 B.R. 601, 603 (1st Cir. BAP 2005); Bruin Portfolio, LLC v. Leicht (In re Leicht), 222 B.R. 670, 671 (1st Cir. BAP 1998). STANDARD OF REVIEW The Panel reviews the Bankruptcy Court’s findings of fact for clear error and conclusions of law de novo. See Lessard v. Wilton-Lyndeborough Coop. School Dist., 592 F.3d 267, 269 (1st Cir.2010). As there are no facts in dispute, the issue is one of statutory construction, which the Panel reviews de novo. See Antognoni v. Basso (In re Basso), 397 B.R. 556, 562 (1st Cir. BAP 2008). DISCUSSION A debtor may exempt from the bankruptcy estate a homestead recognized as exempt under state law. See 11 U.S.C. § 522(b)(3); In re Basso, 397 B.R. 556. Here, the Debtor filed the 2009 Homestead pursuant to Mass. Gen. Laws ch. 188, § 1, and elected the Massachusetts state exemption scheme in her bankruptcy case. As a joint tenant owner of the Property, the Debtor may claim a homestead exemption only in her one-half interest in the Property. See 11 U.S.C. § 522(b) (providing exemptions from property of the estate); 14C Mass. Prac., Summary of Basic Law § 15.28 (explaining that joint tenants each own an undivided interest in the property); Bishop v. Vitale, 2006 WL 2692576, *1 n. 3 (Mass.Land Ct. Sept.20, 2006). Premier argues that the 2009 Homestead does not protect Sullivan’s interest, because she is an adult child who does not reside at the Property. This argument erroneously assumes that Sullivan’s interest requires protection from its lien. Premier’s judgment was solely against the Debtor, and its attachment and subsequent lien were against the interest the Debtor had in the Property as of November 24, 2004. The Debtor had transferred the Property to herself and Sullivan as joint tenants prior to that date. Thus, the Debtor and Sullivan each owned a one-half interest in the Property at the time" }, { "docid": "16032965", "title": "", "text": "re American Colonial Broad. Corp., 758 F.2d 794, 801 (1st Cir.1985)). Generally, bankruptcy court orders finding stay violations and imposing or denying damages for such violations are final appeal-able orders. See Heghmann v. Indorf (In re Heghmann), 316 B.R. 395, 400 (1st Cir. BAP 2004) (citations omitted). STANDARD OF REVIEW Appellate courts apply the clearly erroneous standard to findings of fact and de novo review to conclusions of law. See Lessard v. Wilton-Lyndeborough Coop. School Dist., 592 F.3d 267, 269 (1st Cir.2010). Generally, a bankruptcy court’s determination as to whether the automatic stay provisions of § 362 have been violated involves a question of law that is subject to de novo review. See Varela v. Quinones Ocasio (In re Quinones Ocasio), 272 B.R. 815, 822 (1st Cir. BAP 2002) (citation omitted); see also In re Heghmann, 316 B.R. at 400 (citations omitted). A bankruptcy court’s assessment of damages for violations of the automatic stay is reviewed for an abuse of discretion. See In re Heghmann, 316 B.R. at 400 (citation omitted). Here, the bankruptcy court determined that the actions in question did not violate the automatic stay because they were “designed, intended and appropriately limited to obtain recovery from the corporation, not Slabicki or his assets.” Slabicki takes issue with many of the factual findings upon which the bankruptcy court based its decision. We review such findings of fact for clear error. A finding is clearly erroneous when, although there is evidence to support it, the Panel is left with the definite impression that a mistake has been made. See Douglas v. Kosinski (In re Kosinski), 424 B.R. 599, 607 (1st Cir. BAP 2010) (citing Gray v. Travelers Ins. Co. (In re Neponset River Paper Co.), 231 B.R. 829, 830-31 (1st Cir. BAP 1999)). Where findings are based on the credibility of witnesses, even greater deference is accorded to the trial court’s findings. See id. (citing Fed. R. Bankr.P. 8013; Rodriguez-Morales v. Veterans Admin., 931 F.2d 980, 982 (1st Cir.1991)). DISCUSSION I. The Automatic Stay When a bankruptcy petition is filed, an automatic stay prevents creditors from taking any collection" }, { "docid": "649131", "title": "", "text": "their equitable claims to title were not subject to Braunstein’s § 544(b) strong-arm powers. The parties stipulated to the facts and filed supporting briefs. After argument, the bankruptcy court concluded that the condominium units at issue were effectively conveyed to Dexter and Betty under Massachusetts law, and, thus, were not property of the estate. This appeal ensued. JURISDICTION Before addressing the merits, we must determine our appellate jurisdiction, whether or not the litigants contest it. See Boylan v. George E. Bumpus, Jr. Constr. Co. (In re George E. Bumpus, Jr. Constr. Co.), 226 B.R. 724 (1st Cir. BAP 1998). We are empowered to hear appeals from: (1) final judgments, orders and decrees; or (2) with leave of court, from certain interlocutory orders. 28 U.S.C. § 158(a); Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). A decision is considered final if it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment,” whereas an interlocutory order “only decides some intervening matter pertaining to the cause, and requires further steps to be taken in order to enable the court to adjudicate the cause on the merits.” Id. (quoting In re American Colonial Broad. Corp., 758 F.2d 794, 801 (1st Cir.1985)). Because a judg ment in an adversary proceeding is a “quintessential final order,” we thus have jurisdiction to review the bankruptcy court’s final judgment. See Lassman v. Keefe (In re Keefe), 401 B.R. 520, 523 (1st car. BAP 2009). STANDARD OF REVIEW A bankruptcy court’s findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. See Lessard v. Wilton-Lyndeborough Coop. School Dist., 592 F.3d 267, 269 (1st Cir.2010). The parties contest only the legal basis for the bankruptcy court’s ruling. We will review it de novo. DISCUSSION The bankruptcy court based its decision on the Massachusetts common law of trusts. It concluded that, notwithstanding the fact that the Aguilars never conveyed their interest in units 2 and 4 to the trust, they had nevertheless" }, { "docid": "16032964", "title": "", "text": "the defendants. This appeal followed. JURISDICTION Before addressing the merits of an appeal, the Panel must determine that it has jurisdiction, even if the issue is not raised by the litigants. See Boylan v. George E. Bumpus, Jr. Constr. Co. (In re George E. Bumpus, Jr. Constr. Co.), 226 B.R. 724 (1st Cir. BAP 1998). The Panel has jurisdiction to hear appeals from: (1) final judgments, orders and decrees; or (2) with leave of court, from certain interlocutory orders. 28 U.S.C. § 158(a); Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). A decision is considered final if it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment,” id. at 646 (citations omitted), whereas an interlocutory order is one which “only decides some intervening matter pertaining to the cause, and which requires further steps to be taken in order to enable the court to adju dicate the cause on the merits.” Id. (quoting In re American Colonial Broad. Corp., 758 F.2d 794, 801 (1st Cir.1985)). Generally, bankruptcy court orders finding stay violations and imposing or denying damages for such violations are final appeal-able orders. See Heghmann v. Indorf (In re Heghmann), 316 B.R. 395, 400 (1st Cir. BAP 2004) (citations omitted). STANDARD OF REVIEW Appellate courts apply the clearly erroneous standard to findings of fact and de novo review to conclusions of law. See Lessard v. Wilton-Lyndeborough Coop. School Dist., 592 F.3d 267, 269 (1st Cir.2010). Generally, a bankruptcy court’s determination as to whether the automatic stay provisions of § 362 have been violated involves a question of law that is subject to de novo review. See Varela v. Quinones Ocasio (In re Quinones Ocasio), 272 B.R. 815, 822 (1st Cir. BAP 2002) (citation omitted); see also In re Heghmann, 316 B.R. at 400 (citations omitted). A bankruptcy court’s assessment of damages for violations of the automatic stay is reviewed for an abuse of discretion. See In re Heghmann, 316 B.R. at 400 (citation omitted). Here, the bankruptcy court" }, { "docid": "17589057", "title": "", "text": "13. The Chapter 13 Trustee did not oppose that. The creditors are getting his net after he makes that payment to his wife. That’s his post-petition income and I think that the Probate Court has every right to enforce its order under the circumstances. I’m not prepared to find that there’s any kind of a stay violation or to interfere with the Probate Court’s jurisdiction over this matter. I think that’s clear from the language of the Code. So your client is out of luck. He’s going to have to figure out a way to get out of jail himself. He has, as the saying goes, holds [sic] the key to his release. He’s got to come up with the money. This appeal followed. JURISDICTION Ordinarily, we hear appeals from final bankruptcy court orders. See 28 U.S.C. § 158(a), (b), and (c). Generally, a bankruptcy court order determining whether there was a violation of the automatic stay is a final order. See Slabicki v. Gleason (In re Slabicki), 466 B.R. 572, 577 (1st Cir. BAP 2012); Milliren v. Milliren (In re Milliren), 387 B.R. 72, 74 (1st Cir. BAP 2008); see also Lomagno v. Salomon Bros. Realty Corp. (In re Lomagno), 429 F.3d 16 (1st Cir.2005). Accordingly, the order determining that the automatic stay did not apply in this instance is final for purposes of appeal, and we have appellate jurisdiction. STANDARD OF REVIEW A bankruptcy court’s findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. See Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 592 F.3d 267, 269 (1st Cir.2010). Generally, a bankruptcy court’s determination as to whether the automatic stay provisions of § 362 have been violated involves a question of law that is subject to de novo review. See In re Slabicki, 466 B.R. at 577 (citation omitted). Moreover, this appeal involves questions of statutory interpretation, which are reviewed de novo. See Coffin v. eCast Settlement Corp. (In re Coffin), 435 B.R. 780, 784-85 (1st Cir. BAP 2010) (citing United States v. Tobin, 552 F.3d 29, 32 (1st Cir.2009)). DISCUSSION Upon" }, { "docid": "17585710", "title": "", "text": "in order to enable the court to adjudicate the cause on the merits.’ ” Id. (quoting In re Am. Colonial Broad. Corp., 758 F.2d 794, 801 (1st Cir.1985)). While orders granting relief from the automatic stay are generally final and appealable, an order denying relief from stay is not final and appealable unless it completely resolves all issues between the parties with respect to the matter for which relief from stay was sought. See Raymond C. Green, Inc. v. DeGiacomo (In re Inofin, Inc.), 466 B.R. 170, 174 (1st Cir. BAP 2012); see also United States v. Fleet Bank of Mass. (In re Calore Express Co.), 288 F.3d 22, 34-35 (1st Cir.2002); Caterpillar Fin. Servs. Corp. v. Braunstein (In re Henriquez), 261 B.R. 67, 70 (1st Cir. BAP 2001). The order on appeal did not resolve all issues between the parties and, therefore, it is not final. The Bank moved for leave to appeal, arguing that this case involves a controlling question of law because if the Debtor had an interest in the property as of the bankruptcy filing, he can cure the default and reinstate the note and the mortgage pursuant to §§ 1322 and 1325. It also argued that the question of whether the Debtor had an interest in the property as of the bankruptcy filing turns on the application of the New Hampshire foreclosure statute, and courts differ on the proper interpretation and application of that statute. Determining that the matter met the pertinent standards for interlocutory review, the Panel granted leave to appeal. STANDARD OF REVIEW Appellate courts apply the clearly erroneous standard to findings of fact and de novo review to conclusions of law. See Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 592 F.3d 267, 269 (1st Cir.2010). Generally, the Panel reviews orders regarding relief from the automatic stay for abuse of discretion. See Aguiar v. Interbay Funding; LLC (In re Aguiar), 311 B.R. 129, 132 (1st Cir. BAP 2004) (citing Soares v. Brockton Credit Union (In re Soares), 107 F.3d 969, 973 (1st Cir.1997)). Issues of statutory interpretation are reviewed de novo. See Ramos Rodriguez" }, { "docid": "15566870", "title": "", "text": "case in the amount of the Award, specifying neither Mr. Barry nor Mrs. Barry as the obligor. In March 2008, Warchol commenced an adversary proceeding against the Barrys with a six-count complaint. In Counts I and II, she sought to except her claim against Mr. Barry from discharge under § 523(a)(2)(A) and (a)(6), respectively. In Counts III through VI, she sought denial of the Bar-rys’ discharges under § 727(a)(2)(A), (a)(3), (a)(4)(A), and (a)(5). After a four-day trial, the bankruptcy court concluded, based upon the totality of the circumstances, that the Barrys acted with actual intent to hinder and delay the collection of Warchol’s claim in violation of § 727(a)(2)(A) when they granted the Mortgages within one year of their bankruptcy case, holding that “[t]he pattern and chronology of transfers can lead to no other conclusion.” The bankruptcy court denied the Barrys’ discharges on July 14, 2010 on § 727(a)(2)(A) grounds, without addressing Warchol’s other theories. This appeal followed. JURISDICTION A bankruptcy appellate panel is duty-bound to determine its jurisdiction before proceeding to the merits even if the issue is not raised by the litigants. See In re George E. Bumpus, Jr. Constr. Co., 226 B.R. 724 (1st Cir. BAP 1998). A panel may hear appeals from “final judgments, orders and decrees [pursuant to 28 U.S.C. § 158(a)(1) ] or with leave of the court, from interlocutory orders and decrees [pursuant to 28 U.S.C. § 158(a)(3) ].” Fleet Data Processing Corp v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). “The Panel has repeatedly ruled that a judgment denying discharge under § 727 is a final order.” Gagne v. Fessenden (In re Gagne), 394 B.R. 219, 224 (1st Cir. BAP 2008) (citing Fagnant v. Cohen Steel Supply, Inc. (In re Fagnant), 337 B.R. 729 (1st Cir. BAP 2006)) (citations omitted). Accordingly, the Panel has jurisdiction to hear this appeal. STANDARD OF REVIEW A bankruptcy court’s findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. See Lessard v. Wilton-Lyndeborough Coop. School Dist., 592 F.3d 267, 269" }, { "docid": "12429560", "title": "", "text": "“We’re not trying to collect money. If you’re in bankruptcy you don’t have to pay. We’re just trying to see if you want to pay” because if you wanted to pay them, they might accept that [in lieu of foreclosure].... But those letters post-discharge and even a letter since you reopened the case — it’s all post-discharge — to the extent they look like that and have those caveats in them, I think come within the statutory exception to violating the discharge injunction. But for the statute it would be a violation, but the statute is there. Based on the foregoing, the bankruptcy court granted Nationstar’s motion for judgment on the pleadings. This appeal followed. JURISDICTION The Panel has jurisdiction to hear appeals from a final judgment of the bankruptcy court. 28 U.S.C. § 158(a)(1). A bankruptcy court’s determination as to a violation of the discharge injunction is a final order. See United States v. Monahan (In re Monahan), 497 B.R. 642, 646 (1st Cir. BAP 2013) (citing Canning v. Beneficial Me., Inc. (In re Canning), 462 B.R. 258, 263 (1st Cir. BAP 2011), aff'd 706 F.3d 64 (1st Cir.2013)). An order granting a motion for judgment on the pleadings pursuant to Rule 12(c) is a final order. See Lomagno v. Salomon Bros. Realty Corp. (In re Lomagno), 320 B.R. 473, 477 (1st Cir. BAP 2005) (citation omitted). Therefore, the Panel has jurisdiction to hear this appeal. STANDARD OF REVIEW The Panel reviews a bankruptcy court’s findings of fact for clear error and its conclusions of law de novo. See Lessard v. Wilton-Lyndeborough Coop. Sch. Dist., 592 F.3d 267, 269 (1st Cir.2010). A bankruptcy court’s entry of a judgment on the pleadings under Rule 12(c) is reviewed de novo. See Curran v. Cousins, 509 F.3d 36, 43 (1st Cir.2007) (citing Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 55 (1st Cir.2006)). DISCUSSION I. Motion for Judgment on the Pleadings A motion for judgment on the pleadings is governed by Rule 12(c), which is made applicable in adversary proceedings pursuant to Bankruptcy Rule 7012. Rule 12(c) provides: “After the pleadings are" }, { "docid": "10759042", "title": "", "text": "about [] Cox at all.” The same day, the Judgment entered for Villa-ni. This appeal followed. JURISDICTION We are duty-bound to determine our jurisdiction before proceeding to the merits, even if not raised by the litigants. See In re George E. Bumpus, Jr. Constr. Co., 226 B.R. 724 (1st Cir. BAP 1998). We may hear appeals from “final judgments, orders and decrees [pursuant to 28 U.S.C. § 158(a)(1) ] or with leave of the court, from interlocutory orders and decrees [pursuant to 28 U.S.C. § 158(a)(3) ].” Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998) (internal quotations omitted). “A final judgment is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Vazquez Laboy v. Doral Mortgage Corp. (In re Vazquez Laboy), 647 F.3d 367, 372 (1st Cir.2011) (citation and internal quotations omitted). A bankruptcy court’s judgment following the trial of a § 727(a)(2)(A) claim is final for appeal purposes. Wardrip v. Hart (In re Hart), 271 B.R. 213 (10th Cir. BAP 2001) (citation omitted). Accordingly, we have jurisdiction to hear this appeal. STANDARD OF REVIEW A bankruptcy court’s findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. Lessard v. Wilton-Lyndeborough Coop. School Dist., 592 F.3d 267, 269 (1st Cir.2010); see also Watman v. Groman (In re Watman), 331 B.R. 502, 507 (D.Mass.2005), aff'd, 458 F.3d 26 (1st Cir.2006); Warchol v. Barry (In re Barry), 451 B.R. 654, 658 (1st Cir. BAP 2011). “Whether a debtor possessed the necessary wrongful intent under § 727(a)(2)(A) is a question of fact, subject to the clearly erroneous standard of review.” In re Barry, 451 B.R. at 658 (citation and internal quotations omitted). “A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Stomawaye Fin. Corp. v. Hill (In re Hill), 387 B.R. 339, 345 (1st Cir. BAP 2008)" } ]

[ { "docid": "15242570", "title": "", "text": "the state. When considering this criteria, the facts presented by plaintiff fail to establish that Schmitt Co.’s presence in New York is sufficiently continuous and substantial to warrant the exercise of jurisdiction pursuant to § 301. As previously noted, Schmitt Co. is not licensed to conduct business in the state. Schmitt Co. does not: (1) maintain a local office or bank account in New York ; (2) possess property in New York; or (3) have a local telephone number. See New World Capital v. Poole Truck Line, Inc., 612 F.Supp. 166, 171 (S.D.N.Y.1985). Nor does Schmitt Co. have shareholders, possess records or employ individuals in this state. Plaintiff, unable to rely on these classic factors of § 301 jurisdiction, argues that Schmitt Co. is “doing business” in New York because Schmitt Co. has allegedly solicited business in this state. Plaintiff concedes, as it must, that the long-standing New York rule is that solicitation alone, no matter how substantial, will not subject a foreign corporation to the jurisdiction of the New York courts. See Laufer, supra, 55 N.Y.2d at 310, 434 N.E.2d at 694, 449 N.Y.S.2d at 459; Miller v. Surf Properties, 4 N.Y.2d 475, 480, 151 N.E.2d 874, 876, 176 N.Y.S.2d 318, 321 (1958); Beacon Enterprises, supra, 715 F.2d at 763. Nevertheless, plaintiff insists that Schmitt Co. has engaged in a variety of activities amounting to “solicitation plus” in New York. In Aquascutum of London, Inc. v. S.S. American Champion, 426 F.2d 205 (2d Cir.1970), Judge Friendly examined the “solicitation plus” doctrine. The Court of Appeals noted that: The New York cases ... on ... “doing business” in New York reveal that while the “solicitation-plus” rule is adhered to, once solicitation is found in any substantial degree very little more is necessary to a conclusion of “doing business.” Id. at 211 (emphasis added) (citing Jensen v. United Air Lines Transport Corp., 255 App.Div. 611, 8 N.Y.S.2d 374 (1st Dep’t 1938), aff'd mem., 281 N.Y. 598, 22 N.E.2d 167 (1939); Elish v. St. Louis S. W. Ry., 305 N.Y. 267, 112 N.E.2d 842 (1953); Bryant, supra, 15 N.Y.2d at 426, 260" } ]

[ { "docid": "5893814", "title": "", "text": "898 F.2d 304, 306 (2d Cir.1990). If the applicable statute of the forum state allows the court to exercise personal jurisdiction, the court must then determine whether the constitutional standards of due process are met. Id. Because this lawsuit does not arise out of any activity by the nonresident defendants within the state of New York, plaintiffs rely on New York’s “general jurisdiction” provision, N.Y.C.P.L.R. § 301. Personal jurisdiction over a corporation exists pursuant to § 301 if the corporation is “engaged in such a continuous and systematic course of ‘doing business’ [in New York] as to warrant a finding of its ‘presence in this jurisdiction.’ ” Laufer v. Ostrow, 55 N.Y.2d 305, 309-10, 449 N.Y.S.2d 456, 434 N.E.2d 692 (1982) (quoting McGowan v. Smith, 52 N.Y.2d 268, 272, 437 N.Y.S.2d 643, 419 N.E.2d 321 (1981)). Section 301 jurisdiction, which subjects a nondomiciliary corporation to suits unrelated to its contacts with New York, is appropriate only if the corporation does business in New York “not occasionally or casually, but with a fair measure of permanence and continuity.” Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 58 (2d Cir.1985) (quoting Tauza v. Susque hanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915 (1917)). As discussed in greater detail below, plaintiffs fail to make a prima facie showing of personal jurisdiction over AutoZug and R & T. There are also serious questions whether this court can exercise jurisdiction over Accor and CIWLT. A. The Remaining Deutsche Bahn Defendants AutoZug and R & T are two German corporations whose principal business is long-distance passenger train travel in Europe. R & T is a wholly owned subsidiary of an entity called DB Personenverkehr, which is itself a wholly owned subsidiary of Deutsche Bahn. AutoZug is a wholly owned subsidiary of R & T. Thus, each subsidiary exists several rungs down the corporate ladder from Deutsche Bahn. Plaintiffs have alleged no direct contacts between AutoZug and New York, and only one such contact between R & T and New York. Specifically, plaintiffs allege that R & T contracted directly with U.S. airlines" }, { "docid": "5583912", "title": "", "text": "Laufer v. Ostrow, 55 N.Y.2d 305, 310, 434 N.E.2d 692, 694, 449 N.Y.S.2d 456, 459 (1982). However, “if the solicitation is substantial and continuous, and defendant engages in other activities of substance in the state, then personal jurisdiction may properly be found to exist.” Id. The evidence in this record falls far short of establishing by a preponderance of the evidence, see Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 150, 112 L.Ed.2d 116 (1990), that either LA/ES or CO-EX are “doing business” in the state so as to warrant a finding that they are present in New York. Indeed, taking the evidence in its most favorable light, the record demonstrates only that those companies have solicited business in New York or have made sales to New York customers. However, neither company has an office in New York, or even a representative visiting New York on anything remotely resembling a regular basis. The minimal visits to customers or trade shows in New York established by this record demonstrate at best only a sporadic presence and are thus plainly insufficient to support the exercise of personal jurisdiction over either company. Nor does the circumstance that CO-EX’s customers occasionally encourage others to purchase CO-EX’s goods provide a basis for the exercise of jurisdiction. This is especially true since those customers had no power to bind CO-EX and CO-EX had no power to control these activities. Compare Katz Communications, Inc. v. Evening News Ass’n, 705 F.2d 20, 24 (2d Cir. 1983). Having concluded that those defendants are not present in New York so as to warrant the exercise of personal jurisdiction, under CPLR 301, the Court must next consider plaintiffs argument that defendants Conterno and LA/ES are subject to personal jurisdiction under CPLR 302(a)(1), which provides that a defendant who has “transacted business” in New York may be sued on any cause of action arising out of that transaction. See Hoffritz For Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 58-59 (2d Cir.1985). Plaintiff relies upon Conterno’s attendance at the meeting in New" }, { "docid": "20659824", "title": "", "text": "Hotels International, Inc., 19 N.Y.2d 533, 281 N.Y.S.2d 41, 43, 227 N.E.2d 851 (1967). A corporation is “present in New York ... if it does business in New York not occasionally or casually, but with a fair measure of permanence and continuity.’ ” Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 58, (2d. Cir.1985), quoting Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915, 917 (1917). Accord Laufer v. Ostrow, 55 N.Y.2d 305, 449 N.Y.S.2d 456, 434 N.E.2d 692 (1982). Factors tending to show a presence in New York and thus a finding of jurisdiction include the existence of a New York office, the presence of bank accounts in New York, ownership of property in New York, and the presence of agents or of employees in New York. Landoil Resources Corp. v. Alexander & Alexander Services, Inc., 918 F.2d 1039, 1043 (2d Cir.1990); see also Hoffritz, 763 F.2d at 58. Solicitation of business alone, however, is insufficient to find a corporate presence in this state. Landoil, 918 F.2d at 1043. A foreign supplier of goods to an independent agency that solicits orders from New York purchasers is not “present” in this jurisdiction. Laufer, 449 N.Y.S.2d at 459, 434 N.E.2d 692. Additionally, a foreign corporation operating in this manner is not subject to jurisdiction merely because it solicits business in New York. See, e.g., Delagi v. Volkswagenwerk AG of Wolfsburg Germany, 29 N.Y.2d 426, 328 N.Y.S.2d 653, 657, 278 N.E.2d 895 (1972). Instead, where the solicitation of business is asserted in support of a “doing business” allegation, the foreign corporation’s activities must rise to me level of solicitation plus “some additional activities ... sufficient to render the corporation amenable to suit.” E.g., Miller v. Surf Properties, Inc., 4 N.Y.2d 475, 176 N.Y.S.2d 318, 321, 151 N.E.2d 874 (1958), quoting International Shoe Co. v. Washington, 326 U.S. 310, 314, 66 S.Ct. 154, 90 L.Ed. 95 (1945). This “solicitation-plus” standard is not satisfied merely through sales of a manufacturer’s product in New York. Delagi 29 N.Y.2d at 433, 328 N.Y.S.2d 653, 278 N.E.2d 895 (“[M]ere sales of a" }, { "docid": "9615819", "title": "", "text": "Aktiengesellschaft, 729 F.2d 1240, 1242 (9th Cir.1984). “[I]t is not enough that an independent contractor is present in New York, systematically soliciting business for the corporation,” Artemide SpA v. Grandlite Design and Mfg. Co., Ltd., 672 F.Supp. 698, 703 (S.D.N.Y.1987), no matter how substantial the orders. Id. (citing Miller v. Surf Properties, Inc., 4 N.Y.2d 475, 176 N.Y.S.2d 318, 151 N.E.2d 874 (1958), Laufer v. Ostrow, 55 N.Y.2d 305, 449 N.Y.S.2d 456, 459, 434 N.E.2d 692, 694-695 (1982) and Delagi v. Volkswagenwerk, 29 N.Y.2d 426, 433, 328 N.Y.S.2d 653, 657 278 N.E.2d 895, 898 (1972)). The cases relied upon by Riviera, Landoil Resources Corp. v. Alexander & Alexander Services, Inc., 918 F.2d 1039 (2d Cir.1990), and Aquascutum of London, Inc. v. SS American Champion, 426 F.2d 205 (2d Cir.1970), are not persuasive authorities in support of finding jurisdiction here. In Landoil, the Court found that New York did not have personal jurisdiction over the Defendant. The Court held that sales consisting of only 2% of total income in New York would not in and of itself confer jurisdiction, id. at 1044, and that for the “solicitation plus” rule to apply, “a Defendant’s presence in New York in addition to solicitations must amount to more than ‘paying persons to perform essentially mechanical tasks for it.’ ” Id. at 1045. Likewise, in Aquascutum, the Court found that it could not exercise jurisdiction over a foreign freight forwarder defendant that did not solicit shipment in New York, but did make shipments to New York. The Court found important the defendant’s representation in the state by independent contractors rather than employees. Aquascutum of London, 426 F.2d at 211. In sum, Riviera has not met its burden of demonstrating that Oakley has a presence in the state sufficient to confer jurisdiction pursuant to section 301 over causes of action not relating to the business conducted in New York. B. Specific Jurisdiction, Under Section 302 Riviera also alleges personal jurisdiction pursuant to Section 302(a)(2), which provides, in relevant part: [A] court may exercise personal jurisdiction over any nondomiciliary ... who in person or through an agent:" }, { "docid": "3212263", "title": "", "text": "v. Amajac, Ltd., 763 F.2d 55, 58 (2d Cir.1985) (quoting Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915 (1917)) (quoted in Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 95 (2d Cir.2000)). . 52 A.D.2d 435, 384 N.Y.S.2d 781 (1st Dep't 1976). . Id. at 439-40, 384 N.Y.S.2d 781. . Laufer v. Ostrow, 55 N.Y.2d 305, 313, 449 N.Y.S.2d 456, 434 N.E.2d 692 (1982) (evidence did not support that defendant was doing business in New York). . Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 58 (2d Cir.1985) (evidence did not support that defendant was doing business in New York). . MediaXposure Ltd. (Cayman) v. Omnireliant Holdings, Inc., No. 603325/09, 29 Misc.3d 1215(A), 2010 WL 4225939 (Table) (Sup. N.Y.Cty. Oct. 25, 2010); San Diego County Employees Retirement Ass'n v. Maounis, 749 F.Supp.2d 104, 116-18, No. 07 Civ. 2618(DAB), 2010 WL 1010012, at *10-11 (S.D.N.Y. Mar. 15, 2010); Palmer v. Globalive Communications Corp., No. 07 Civ. 038(MGC), 2008 WL 2971469, *3-4 (S.D.N.Y. Aug. 1, 2008). . Compare Cpt. (listing \"Hugo Gerardo Camacho Naranjo” and \"Javier Piaguaje Payaguaje” as defendants) with Aguinda Cpt. (listing \"Gerardo Camacho” and \"Javier Piyaguaje” as plaintiffs). . See Yaiguaje et al. v. Chevron Corp., 10 Civ. 316(LBS). . Wiwa, 226 F.3d at 95. .Id. . See Hendricks Decl. II Ex. 89. . Id. Ex. 337. . Burford invested. Id. Ex. 430. . Id. Ex. 277. . Id. Ex. 6 at 719:2-720:12. . Id. Ex. 271. . Id. Ex. 283. . Klinghoffer v. S.N.C. Achilla Lauro Ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria, 937 F.2d 44, 51 (2d Cir.1991) (internal quotation marks omitted) (citing Laufer v. Ostrow, 55 N.Y.2d 305, 311, 449 N.Y.S.2d 456, 434 N.E.2d 692, 694 (1982) (citations omitted)). . See ABKCO, 52 A.D.2d at 440, 384 N.Y.S.2d at 784 (“Starkey’s composing activities, which he has exploited in the United States through attorneys and accountants whom he has retained in New York on a continuing basis, constitute doing business in New York.”). . Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 23-24 (2d Cir.2004); see also Sole Resort," }, { "docid": "23490970", "title": "", "text": "systematic course of activity that it can be deemed present in the state of New York.” Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 50-51 (2d Cir.1991) (quoting Laufer v. Ostrow, 55 N.Y.2d 305, 449 N.Y.S.2d 456, 434 N.E.2d 692, 694 (1982) (citations omitted)); see Mareno v. Rowe, 910 F.2d 1043, 1046 (2d Cir.1990); Frummer v. Hilton Hotels Int’l, Inc., 19 N.Y.2d 533, 281 N.Y.S.2d 41, 227 N.E.2d 851, 853 (1967). A foreign corporation may be subjected to the jurisdiction of New York even without any physical presence here if the corporation conducts, or purposefully directs, business “ ‘not occasionally or casually, but with a fair measure of permanence and continuity.’ ” Landoil Resources Corp. v. Alexander & Alexander Servs., 77 N.Y.2d 28, 563 N.Y.S.2d 739, 565 N.E.2d 488, 490 (1990) (quoting Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915, 917 (N.Y.1917)). The test, a “simple pragmatic one,” Bryant v. Finnish Nat. Airline, 15 N.Y.2d 426, 260 N.Y.S.2d 625, 208 N.E.2d 439, 441 (1965), is necessarily fact sensitive. See Landoil Resources Corp. v. Alexander & Alexander Servs., 918 F.2d 1039, 1043 (2d Cir.1990); Stark Carpet Corp. v. M-Geough Robinson, Inc., 481 F.Supp. 499, 504 (S.D.N.Y.1980). “In assessing jurisdiction . under this pragmatic standard, New York courts have generally focused on the following indicia of jurisdiction: the existence of an office in New York; the solicitation- of business in New York; the presence of bank accounts or other property in New York; and the presence of employees or agents in New York.” Landoil, 918 F.2d at 1043; see Hoffritz, 763 F.2d at 58. However, “[solicitation of business alone will not justify a finding of corporate presence in New York with respect to a foreign manufacturer or purveyor of services.” Laufer, 449 N.Y.S.2d at 459, 434 N.E.2d 692; see Frummer, 281 N.Y.S.2d 41, 227 N.E.2d at 853. Yet, under the “solicitation plus” test, if the solicitation “is substantial and continuous, and defendant engages in other activities of substance in the state, then personal jurisdiction may properly be found to exist.” Landoil, 918 F.2d at 1043-44; see Beacon, 715" }, { "docid": "5563563", "title": "", "text": "New York; b) defendant’s regular and continual visits to New York “for the business purpose of playing professional games for profit”; and e) defendant’s “dealings with New York business concerns ... in furtherance of the business purpose in New York.” 349 F.Supp. 709, 714r-15 (E.D.N.Y.1972). To find the de fendant subject to general personal jurisdiction pursuant to CPLR § 301, Erving relied on Hawkins v. National Basketball Ass’n., 288 F.Supp. 614 (W.D.Pa.1968), in which the Court denied a motion by defendant basketball clubs to change venue, stating that “[t]he only business a corporation-owned professional athletic league team could engage in profitably is to systematically play games with other member teams.... ” Id. (citing Hawkins, 288 F.Supp. at 619). Thus, Erving reasoned that the playing of games is the business of a professional sports team, and by playing games professional sports teams are doing business. Likewise, in Laufer v. Ostrow, 55 N.Y.2d 305, 311, 449 N.Y.S.2d 456, 459, 434 N.E.2d 692, 694-95 (1982) the Court of Appeals held that a soliciting agency was doing business in New York, despite the general rule that mere solicitation of business will not justify general personal jurisdiction, because if the defendant’s business “is limited to the soliciting of orders and servicing of purchasers’ accounts, [it] engages directly in its corporate activity when ... it solicits and services New York accounts on a continuous basis.” Id. (emphasis added). Thus, a defendant who lacks the traditional indicia of doing business nevertheless does business in New York when it engages in its principal corporate activity within New York on a systematic and continual basis. Here, Caldwell’s business is the presentation of plays. Plaintiff has not alleged that defendant presented the Play or any other play in New York. Indeed, plaintiff has alleged, and defendants have not denied, only three systematic and ongoing contacts defendants have with New York: that Caldwell regularly enters into licensing agreements with New York entities or individuals for the rights to produce plays, that defendants regularly hire New York actors for their productions and deal with their New York-based unions, and that Caldwell is" }, { "docid": "23142788", "title": "", "text": "F.2d 1298, 1301-02 (2d Cir.1990); Boring v. Kozakiewicz, 833 F.2d 468, 470-71 (3d Cir.1987), cert. denied, 485 U.S. 991, 108 S.Ct. 1298, 99 L.Ed.2d 508 (1988). Therefore, the district court properly denied Mareno’s request for a notation of default against JAA. Turning to the principal basis for this appeal, Mareno argues that the district court improvidently dismissed his complaint for lack of personal jurisdiction over the defendants. Where the underlying action is based on a federal statute, we are to apply state personal jurisdiction rules if the federal statute does not specifically provide for national service of process. Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 104-05, 108 S.Ct. 404, 409-10, 98 L.Ed.2d 415 (1987); accord Canterbury Belts Ltd. v. Lane Walker Rudkin, Ltd., 869 F.2d 34, 40 (2d Cir.1989). In this case, Mareno argues that the defendants are amenable to suit under New York’s corporate presence doctrine and under its long arm statute. See N.Y.Civ.Prac.L. & R. §§ 301, 302(a)(3). We disagree. Under section 301, an entity is amenable to jurisdiction in New York if it is “doing business” in New York so as to establish its presence in the state. Ball v. Metallurgie Hoboken—Overpelt, S.A., 902 F.2d 194, 198 (2d Cir.1990); Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 58 (2d Cir.1985). A foreign corporation is said to be “doing business” in New York if it engages in a continuous and systematic course of conduct in New York. Laufer v. Ostrow, 55 N.Y.2d 305, 309-10, 434 N.E.2d 692, 694, 449 N.Y.S.2d 456, 458 (1982); Frummer v. Hilton Hotels Int’l, Inc., 19 N.Y.2d 533, 536, 227 N.E.2d 851, 853, 281 N.Y.S.2d 41, 43, cert. denied, 389 U.S. 923, 88 S.Ct. 241, 19 L.Ed.2d 266 (1967). Neither JTEB nor JAA solicits business, has offices, holds bank accounts or property, or employs individuals in New York; thus, none of the factors indicative of presence have been demonstrated. See Hoffritz, 763 F.2d at 58. Equally unavailing is Mareno’s argument that EAF’s presence in New York is a predicate for the exercise of jurisdiction over the corporate defendant." }, { "docid": "8934889", "title": "", "text": "reasonable and just according to “‘traditional notions of fair play and substantial justice’ ” that it be required to defend the action within that state. Laufer, 55 N.Y.2d at 308, 449 N.Y.S.2d at 458, 434 N.E.2d at 693-94, quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 320, 66 S.Ct. 154, 160, 90 L.Ed. 95 (1945). In applying the pragmatic test of § 301, New York courts have concentrated upon several factors, including: the existence of an office in New York; the presence of bank accounts and other property in this state; the solicitation of business in this state; and the presence of employees of the foreign defendant in the state. Berk v. Nemetz, 646 F.Supp. 1080, 1083 (S.D.N.Y.1986) (citations omitted). In the present case, defendant does not exhibit the classic indicia of doing business in New York. Although defendant arguably solicits business in New York, it is not licensed or authorized to do business in this state. Nor does defendant maintain an office or have bank accounts within this State; and apparently defendant does not own any property within this State. Lastly, the defendant does not have employees in New York State. Because plaintiff is unable to rely upon those traditional indicia of § 301 jurisdiction, plaintiff argues that defendant is doing business within New York because it has allegedly solicited business within this State. Plaintiff acknowledges that the long established rule in New York is that, solicitation alone, regardless of how substantial, will not subject a foreign corporation to the jurisdiction of New York courts. See Laufer, 55 N.Y.2d at 312, 449 N.Y.S.2d at 459, 434 N.E.2d at 694-95; Miller v. Surf Properties, 4 N.Y.2d 475, 480, 176 N.Y.S.2d 318, 321, 151 N.E.2d 874 (1958); Beacon Enterprises, 715 F.2d at 763. Plaintiff urges, however, that defendant has engaged in conduct within New York State which amounts to “solicitation plus.” See Rolls-Royce Motors, Inc. v. Charles Schmitt & Co., 657 F.Supp. 1040, 1045 (S.D.N.Y.1987). Judge Friendly explained the “solicitation plus” doctrine as follows: [T]he cases ... which find personal jurisdiction under the “solicitation-plus” rubric have involved either some" }, { "docid": "23490971", "title": "", "text": "Corp. v. Alexander & Alexander Servs., 918 F.2d 1039, 1043 (2d Cir.1990); Stark Carpet Corp. v. M-Geough Robinson, Inc., 481 F.Supp. 499, 504 (S.D.N.Y.1980). “In assessing jurisdiction . under this pragmatic standard, New York courts have generally focused on the following indicia of jurisdiction: the existence of an office in New York; the solicitation- of business in New York; the presence of bank accounts or other property in New York; and the presence of employees or agents in New York.” Landoil, 918 F.2d at 1043; see Hoffritz, 763 F.2d at 58. However, “[solicitation of business alone will not justify a finding of corporate presence in New York with respect to a foreign manufacturer or purveyor of services.” Laufer, 449 N.Y.S.2d at 459, 434 N.E.2d 692; see Frummer, 281 N.Y.S.2d 41, 227 N.E.2d at 853. Yet, under the “solicitation plus” test, if the solicitation “is substantial and continuous, and defendant engages in other activities of substance in the state, then personal jurisdiction may properly be found to exist.” Landoil, 918 F.2d at 1043-44; see Beacon, 715 F.2d at 763; Aquascutum of London, Inc. v. S.S. Amer ican Champion, 426 F.2d 205, 211 (2d Cir.1970). Citigroup avers that this Court has general jurisdiction over City National and City Holding under the “solicitation plus” test. As explained below, Citigroup has demonstrated substantial and continuous solicitation activity by City National of business in New York. The Court declines to resolve whether Citigroup has demonstrated sufficient “plus” factors but observes that it is unlikely that the Court would conclude Citigroup has done so. 1. Solicitation Activity As described above, City National conducts a nationwide mortgage origination business through its City Mortgage and City Lending Divisions. City National solicits business for its lending products and services in New York through advertising circulars mailed directly to New York residents and through its web sites. The direct mail circulars display the allegedly infringing CITY marks and promote the lending products and services offered by City National. They also include a toll-free number, the location of the City Lending web site, and the statement that City National is a" }, { "docid": "4976603", "title": "", "text": "consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce. ****** . While the Complaint also alleges jurisdiction over defendant on the basis of the New York C.P.L.R. § 301, see Complaint ¶ 6, this point is not discussed in plaintiff’s brief, and it appears that plaintiff may have abandoned this argument. However, it is clear that defendant would not be subject to jurisdiction under § 301 based on his personal contacts with New York. Section 301 provides that \"[a] court may exercise jurisdiction over person, property, or status as might have been exercised heretofore.” N.Y.C.P.L.R. § 301. Under this statute, a non-domiciliary may be subject to suit in New York on any cause of action even if unrelated to contacts in New York, if he \"does business” in the state. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57-58 (2d Cir.1985); Alexander & Alexander, Inc. v. Donald F. Muldoon & Co., 685 F.Supp. 346, 352 (S.D.N.Y.1988). The defendant must do business \"not occasionally or casually, but with a fair measure of permanence and continuity.\" Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 115 N.E. 915, 917 (1917); accord Laufer v. Ostrow, 55 N.Y.2d 305, 310, 434 N.E.2d 692, 694, 449 N.Y.S.2d 456, 458 (1982). Defendant’s attendance at the New York Dental Show \"from time to time,” see Lares Aff. I ¶ 7, along with his few other visits to New York in the last several years, clearly do not satisfy the \"doing business” standard for general jurisdiction under § 301. . It is not clear whether Kreutter is applicable to the general jurisdiction provision of N.Y.C.P.L.R. § 301. At least one court in this district, while noting that Kreutter was not decided in the context of § 301, has applied Kreut-ter’s agency test to this provision. See Keramchemie GmbH v. Keramchemie (Canada) Ltd., 771 F.Supp. 618, 622 (S.D.N.Y.1991). We do not find it necessary to reach this issue here, however, for several reasons. As discussed above," }, { "docid": "11045024", "title": "", "text": "Ranier, 898 F.2d 304, 306 (2d Cir.1990) (citing Arrowsmith v. United Press Int’l, 320 F.2d 219, 222-25 (2d Cir.1963)). If the applicable statute of the forum state allows the court to exercise jurisdiction, the court must then consider whether the exercise of jurisdiction meets constitutional standards of due process. See Savin, 898 F.2d at 306; Darby v. Compagnie National Air France, 735 F.Supp. 555, 559 (S.D.N.Y.1990). Plaintiff asserts jurisdiction over the moving defendants on the basis of New York Civil Practice Law & Rules § 301. See Plaintiffs Mem. of Law at 11. Section 301 provides that “[a] court may exercise jurisdiction over person, property, or status as might have been exercised heretofore.” N.Y.C.P.L.R. § 301.. Section 301 incorporates the caselaw prior to its enactment which provided that a corporation may be subject to jurisdiction in New York for any cause of action even if unrelated to contacts in New York if it is “doing business” and therefore “present” in New York. Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57-58 (2d Cir.1985). The New York courts have construed this standard so that a foreign corporation must do business in New York “not occasionally or casually, but with a fair measure of permanence and continuity.” Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915, 917 (1917); accord Laufer v. Ostrow, 55 N.Y.2d 305, 310, 434 N.E.2d 692, 694, 449 N.Y.S.2d 456, 458 (1982). The New York courts have termed this test for doing business a “simple and pragmatic one,” Bryant v. Finnish National Airline, 15 N.Y.2d 426, 432, 208 N.E.2d 439, 441, 260 N.Y.S.2d 625, 628-29 (1965), in which the court determines if the foreign corporation’s activities in New York are “continuous and systematic.” Frummer v. Hilton Hotels Int’l, Inc., 19 N.Y.2d 533, 536, 227 N.E.2d 851, 853, 281 N.Y.S.2d 41, 43, cert. denied, 389 U.S. 923, 88 S.Ct. 241, 19 L.Ed.2d 266 (1967). However, the caselaw demonstrates that evaluation of jurisdiction under this “doing business” standard requires close consideration of the facts and circumstances in each case, because no single factor is dispositive. See" }, { "docid": "7214102", "title": "", "text": "On a motion to dismiss for lack of personal jurisdiction under FRCP 12(b)(2), the pleadings and affidavits are to be considered in the light most favorable to the plaintiff. See Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985); Bialek v. Racal-Milgo, Inc., 545 F.Supp. 25, 33 (S.D.N.Y.1982). The plaintiff is only required to make a prima facie showing that the defendants are amenable to suit in New York. See Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981). After hearing oral argument and carefully reviewing all of the parties’ submissions, the Court concludes that the New York long arm statute does not reach the defendants. A. Section 301: Doing Business in New York CPLR section 301 provides that, “[a] court may exercise such jurisdiction over persons, property or status as might have been exercised heretofore.” Thus, section 301 essentially codifies the case law regarding jurisdiction over foreign corporations as that law existed before the statute’s enactment. Accordingly, courts in New York may exercise personal jurisdiction over non-domiciliaries when the defendant is “engaged in such a continuous and systematic course of ‘doing business’ here as to warrant a finding of its ‘presence’ in this jurisdiction.” Laufer v. Ostrow, 55 N.Y.2d 305, 309-10, 449 N.Y.S.2d 456, 434 N.E.2d 692 (1982); McGowan v. Smith, 52 N.Y.2d 268, 272, 437 N.Y.S.2d 643, 419 N.E.2d 321 (1981). There is no black-letter test regarding the nature or the extent of business that must be done, Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915 (1917), however, New York courts have applied a “simple and pragmatic” test. Bryant v. Finnish National Airline, 15 N.Y.2d 426, 432, 260 N.Y.S.2d 625, 628-29, 208 N.E.2d 439, 441-42 (1965). This approach weighs several factors including whether the defendant maintains offices, employees or agents in the state, has a telephone listing in New York, is licensed to do business in or solicits business in the state, maintains bank accounts in the state or has visited New York. See Berk v. Nemetz, 646 F.Supp. 1080, 1083 (S.D.N.Y.1986); Cambridge Energy Corp. v. Tri-Co" }, { "docid": "23579923", "title": "", "text": "The Court must therefore analyze a defendant's connections to the forum state “not for the sake of contact-counting, but rather for whether such contacts show a continuous, permanent and substantial activity in New York.” Weinstein, Korn & Miller, New York Civil Practice, 11301.16, at 3-32. In assessing jurisdiction under this pragmatic standard, New York courts have generally focused on the following indicia of jurisdiction; the existence of an office in New York; the solicitation of business in New York; the presence of bank accounts or other property in New York; and the presence of employees or agents in New York. Hoffritz, supra, 763 F.2d at 58 (citations omitted). However, the “[sjolicitation of business alone will not justify a finding of corporate presence in New York with respect to a foreign manufacturer or purveyor of services.” Laufer, supra, 55 N.Y.2d at 310, 434 N.E.2d at 694, 449 N.Y.S.2d at 459; see Frummer, supra, 19 N.Y.2d at 536, 227 N.E.2d at 853, 281 N.Y.S.2d at 43; Miller v. Surf Properties, 4 N.Y.2d 475, 480, 151 N.E.2d 874, 876, 176 N.Y.S.2d 318, 320 (1958). On the other hand, if the solicitation is substantial and continuous, and defendant engages in other activities of substance in the state, then personal jurisdiction may properly be found to exist. See Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757, 763 (2d Cir.1983); Aquascutum of London, Inc. v. S.S. American Champion, 426 F.2d 205, 211 (2d Cir.1970); Laufer, supra, 55 N.Y.2d at 309-11, 434 N.E.2d at 695, 449 N.Y.S.2d at 459; D. Siegel, New York Practice, § 82, at 90-91. Under this “solicitation-plus” rule, “once solicitation is found in any substantial degree very little more is necessary to a conclusion of ‘doing business.’ ” Aquascutum, supra, 426 F.2d at 211. Alexander & Alexander argue that the district court erred in not applying the “solicitation-plus” test for personal jurisdiction under New York law, contending that under that test the Sedgwick defendants’ employees’ trips to the United States to service existing accounts and solicit new ones constituted substantial solicitation and that the following factors meet the “plus” portion of the test:" }, { "docid": "4319325", "title": "", "text": "628-29, 208 N.E.2d 439, 441 (1965)). In applying this “simple and pragmatic” test under CPLR § 301, New York courts have focused on a number of factors including: “the existence of an office in New York; the solicitation of business in the state; the presence of bank accounts and property in the state; and the presence of employees of the foreign defendant in the state. Hoffritz For Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 58 (2d Cir.1985) (citing Frummer v. Hilton Hotels Int’l, Inc., 19 N.Y.2d 533, 537, 281 N.Y.S.2d 41, 44, 227 N.E.2d 851, 853, cert. denied, 389 U.S. 923, 88 S.Ct. 241, 19 L.Ed.2d 266 (1967)). New York courts also look to whether defendant lists a telephone number in the state. Rolls-Royce Motors, Inc., 657 F.Supp. at 1044. It is well settled that “mere solicitation of business by a foreign corporation in New York is an insufficient basis for the exercise of personal jurisdiction.” Hoffritz For Cutlery, Inc., 763 F.2d at 59; see Rolls-Motors, Inc. v. Charles Schmitt & Co., 657 F.Supp. 1040, 1044-45 (S.D.N.Y.1987). When there are activities of substance in addition to solicitation, however, there is presence and therefore jurisdiction. Grill v. Walt Disney Co., 683 F.Supp. at 68. This theory of jurisdiction has become known as the “solicitation plus” doctrine. See Asquascutum of London, Inc. v. S.S. American Champion, 426 F.2d 205, 211 (2d Cir.1970). Cases which find jurisdiction under the “solicitation plus” doctrine “have involved either financial or commercial dealings in New York, either personally or through an agent.” , Id. at 212 (citations omitted). Dartmouth is not licensed to do business in New York, it maintains no offices in New York, and it does not list a phone number in New York. Nonetheless, Dartmouth engages in a continuous and systematic course of conduct sufficient to warrant a finding that it is doing business in New York. Dartmouth College actively solicits students in New York by sending representatives to approximately 44 secondary schools in the state a year. In addition to this solicitation, Dartmouth has engaged in substantial commercial activity in the state." }, { "docid": "5893827", "title": "", "text": "a) Accor’s Activities in New York In determining whether a corporation does business in New York with sufficient regularity to make it amenable to personal jurisdiction under § 301, a court should consider whether the corporation maintains offices, bank accounts, or other property in New York; whether employees of the corporation are present in New York; and whether the corporation solicits business in New York. See Hoffritz, 763 F.2d at 58. “Solicitation of business alone will not justify a finding of corporate presence in New York with respect to a foreign manufacturer or purveyor of services, but when there are activities of substance in addition to solicitation there is presence and, therefore, jurisdiction.” Laufer, 55 N.Y.2d at 310, 449 N.Y.S.2d 456, 434 N.E.2d 692 (internal citation omitted); see also Landoil Res. Corp. v. Alexander & Alexander Servs., Inc., 918 F.2d 1039, 1043-44 (2d Cir.1990). The plaintiffs cite the following contacts as sufficient to support general jurisdiction over Accor: (1) Accor owns more than 15 businesses that are registered to conduct business in New York, and its North American subsidiaries accounted for 22% of its revenue in 2002. (2) Accor maintains a web of internet sites linking its various subsidiary hotels. Through these websites, Accor solicits U.S. businesses (including New York businesses) to join its affiliate program. By placing a link to Accor’s website on its website, a member of the affiliate program can receive compensation for every booking that Accor obtains through customers directed to it by an affiliate. (3) Accor encourages U.S. customers (including New York residents) to join one of its “loyalty programs,” through which they can earn credit toward discounts at Accor hotels. (4) In 1999, Accor announced that it was acquiring Red Roof Inns and Motel 6. As paid; of this acquisition, it received a commitment from Morgan Stanley Real Estate Fund LP to tender its 68.3% stake in those hotel chains. The Morgan Stanley Real Estate Fund is owned by Morgan Stanley Group, Inc., a Delaware company whose principal office is located in New York City. (5) Accor hired a New York law firm, Proskauer" }, { "docid": "20659823", "title": "", "text": "2007 WL 1815511 at *2 (2d Cir. June 26, 2007). Where, as here, no discovery has been conducted, all factual matters are to be resolved in the light most favorable to plaintiff. E.g., Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 184 (2d Cir.1998). If, but only if, jurisdiction is proper under state law must the court address whether exercise of jurisdiction comports with constitutional standards of due process under the Fourteenth Amendment. Best Van Lines, 490 F.3d 239, 241-42. A. Personal Jurisdiction Under New York Law Plaintiff alleges personal jurisdiction over Defendants pursuant to sections 301, 302(a)(1), and 302(a)(3) of the New York Civil Practice Law and Rules (“CPLR”). The court considers each basis in turn. 1. Section 301 A foreign corporation is amenable to jurisdiction under CPLR section 301 if it is “doing business” in New York State. A foreign corporation is “doing business” if it engages in “such a continuous and systematic course of doing business” sufficient to support a finding of its presence in this jurisdiction. E.g., Frummer v. Hilton Hotels International, Inc., 19 N.Y.2d 533, 281 N.Y.S.2d 41, 43, 227 N.E.2d 851 (1967). A corporation is “present in New York ... if it does business in New York not occasionally or casually, but with a fair measure of permanence and continuity.’ ” Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 58, (2d. Cir.1985), quoting Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915, 917 (1917). Accord Laufer v. Ostrow, 55 N.Y.2d 305, 449 N.Y.S.2d 456, 434 N.E.2d 692 (1982). Factors tending to show a presence in New York and thus a finding of jurisdiction include the existence of a New York office, the presence of bank accounts in New York, ownership of property in New York, and the presence of agents or of employees in New York. Landoil Resources Corp. v. Alexander & Alexander Services, Inc., 918 F.2d 1039, 1043 (2d Cir.1990); see also Hoffritz, 763 F.2d at 58. Solicitation of business alone, however, is insufficient to find a corporate presence in this state. Landoil, 918 F.2d at 1043." }, { "docid": "3822760", "title": "", "text": "court must be able to say from the facts that the corporation is ‘present’ in the State not occasionally or casually, but with a fair measure of permanence and continuity.” Landoil Res. Corp., 77 N.Y.2d at 33-34, 563 N.Y.S.2d 739, 565 N.E.2d 488 (citations and alterations omitted); accord Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 95 (2d Cir.2000). “The New York courts, in applying the pragmatic test for section 301 jurisdiction, have focused upon factors including: the existence of an office in New York; the solicitation of business in the state; the presence of bank accounts and other property in the state; and the presence of employees of the foreign defendant in the state.” Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 58 (2d Cir.1985); accord Wiwa, 226 F.3d at 98. Although “[solicitation of business alone will not justify a finding of corporate presence in New York with respect to a foreign manufacturer or purveyor of services, ... when there are activities of substance in addition to solicitation there is presence and, therefore, jurisdiction.” Laufer v. Ostrow, 55 N.Y.2d 305, 310, 449 N.Y.S.2d 456, 434 N.E.2d 692 (1982); see Landoil Res. Corp. v. Alexander & Alexander Sens., Inc., 918 F.2d 1039, 1044 (2d Cir.1990) (“Under this ‘solicitation-plus’ rule, once solicitation is found in any substantial degree very little more is necessary to a conclusion of ‘doing business.’ ” (citation omitted)). Here, BMS alleges that Matrix markets and sells generic pharmaceutical products throughout the United States, including in New York, see Am. Compl. ¶ 16, and that Matrix derives substantial revenues from its sales in New York, see id. ¶ 19. Although the extent of Matrix’s sales is unclear, Matrix is alleged to be one of the world’s largest generic drug manufacturers, see id. ¶ 16, and Matrix’s business activities in New York allegedly include the sale of generic versions of Lipitor and other products, see id. ¶ 21. BMS further alleges that Matrix regularly conducts business with at least one New York corporation, BMS, and entered into a contract with BMS governed by New York law." }, { "docid": "15242568", "title": "", "text": "to its enactment, which provided that a corporation is “doing business” and is therefore “present” in New York and subject to personal jurisdiction with respect to any cause of action, related or unrelated to the New York contacts, if it does business in New York “not occasionally or casually, but with a fair measure of permanence and continuity.” Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915, 917 (1917); accord Laufer v. Ostrow, 55 N.Y.2d 305, 449 N.Y. S.2d 456, 434 N.E.2d 692 (1982). “A non-domiciliary may be served outside New York, and sued upon any cause of action, if it engages in a continuous and systematic course of doing business in New York.” Hoffritz, supra, 763 F.2d at 58 (citing Frummer v. Hilton Hotels International, Inc., 19 N.Y.2d 533, 536, 281 N.Y.S.2d 41, 43, 227 N.E.2d 851, 853, cert. denied, 389 U.S. 923, 88 S.Ct. 241, 19 L.Ed.2d 266 (1967); Liquid Carriers Corp. v. American Marine Corp., 375 F.2d 951, 953 (2d Cir.1967)). Whether a corporation may be deemed to be present by virtue of its doing business in the jurisdiction depends upon the application of a “simple and pragmatic” test. Bryant v. Finnish National Airline, 15 N.Y.2d 426, 432, 260 N.Y.S.2d 625, 628-29, 208 N.E.2d 439, 441 (1965). However, the only clear conclusion derivable from these decisions is that a “doing business” determination is unique to each case, requiring consideration of all the facts and circumstances, without relying unduly on any one factor. As a threshold matter, the Court notes that Schmitt Co. is not incorporated or licensed to do business in New York. “The New York courts, [however,] in applying the pragmatic test for section 301 jurisdiction, have focused upon [additional] factors including: the existence of an office in New York; the solicitation of business in the state; the presence of bank accounts and other property in the state; and the presence of employees of the foreign defendant in the state.” Hoffritz, supra, 763 F.2d at 58 (citations omitted) (emphasis added). New York courts also look at whether defendant lists a telephone number in" }, { "docid": "23142789", "title": "", "text": "in New York if it is “doing business” in New York so as to establish its presence in the state. Ball v. Metallurgie Hoboken—Overpelt, S.A., 902 F.2d 194, 198 (2d Cir.1990); Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 58 (2d Cir.1985). A foreign corporation is said to be “doing business” in New York if it engages in a continuous and systematic course of conduct in New York. Laufer v. Ostrow, 55 N.Y.2d 305, 309-10, 434 N.E.2d 692, 694, 449 N.Y.S.2d 456, 458 (1982); Frummer v. Hilton Hotels Int’l, Inc., 19 N.Y.2d 533, 536, 227 N.E.2d 851, 853, 281 N.Y.S.2d 41, 43, cert. denied, 389 U.S. 923, 88 S.Ct. 241, 19 L.Ed.2d 266 (1967). Neither JTEB nor JAA solicits business, has offices, holds bank accounts or property, or employs individuals in New York; thus, none of the factors indicative of presence have been demonstrated. See Hoffritz, 763 F.2d at 58. Equally unavailing is Mareno’s argument that EAF’s presence in New York is a predicate for the exercise of jurisdiction over the corporate defendant. EAF exists as a discrete corporate entity and performs a business function wholly unrelated to the operation of FBOs. In light of the tenuous connection between EAF and its corporate siblings, it stretches the imagination to argue that EAF acts as an agent or department of JAA or JTEB. See Delagi v. Volkswagenwerk AG, 29 N.Y.2d 426, 432, 278 N.E.2d 895, 897, 328 N.Y.S.2d 653, 657 (1972); Frummer, 19 N.Y.2d at 537, 227 N.E.2d at 853-54, 281 N.Y.S.2d at 44. Accordingly, there is no basis to attribute EAF’s New York contacts to its corporate siblings. Mareno further contends that the court may exercise jurisdiction over the corporate defendant under section 302(a)(3) of New York’s long arm statute. Again, we disagree. Section 302(a)(3) requires that a plaintiff demonstrate, inter alia, that the defendant “committ[ed] a tortious act without the state causing injury to person or property within the state.” To satisfy this requirement Mareno argues that he was injured within the state by virtue of the fact that he has suffered financial loss in New York." } ]

[ { "docid": "16447935", "title": "", "text": "K. K. HALL, Circuit Judge: Frances B. Davis, a Licensed Practical Nurse (“LPN”), appeals from a final judgment entered against her in a civil action filed under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, (“the Act”). The Southeastern Community College (“college”), located in North Carolina, was the named defendant, and Ms. Davis complained that the college unlawfully denied her admittance to the college’s Associate Degree Nursing Program (“program”), which would ultimately lead to certification as a Registered Nurse (“RN”), because of her admitted hearing disability. Following a trial to the court, the district judge held: (1) that the plaintiff did not have to exhaust further administrative remedies as a precondition to suit; (2) that the plaintiff was not denied any constitutional or property rights, under either due process or equal protection clauses of the Constitution, [42 U.S.C. § 1983]; and (3) that the plaintiff, although plainly a “handicapped individual” within the meaning of 29 U.S.C. § 706(6), was not discriminated against within the strictures of 29 U.S.C. § 794. Davis v. Southeastern Community College, 424 F.Supp. 1341 (E.D.N.C.1976). We affirm in part, and vacate in part and remand. I. PRIVATE RIGHT OF ACTION Although the district court did not make a specific legal finding as to whether or not the plaintiff could pursue a private right of action under Section 504 of the Act, we believe that such a finding was at least implicit, and was legally sound. On this point, we affirm, and we adopt the sound reasoning of the Seventh Circuit in Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1284-87 (7th Cir. 1977). See also United Handicapped Federation v. Andre, 558 F.2d 413, 415 (8th Cir. 1977); Kampmeier v. Nyquist, 553 F.2d 296, 299 (2nd Cir. 1977); Hairston v. Drosick, 423 F.Supp. 180 (S.D.W.Va.1976); Sites v. McKenzie, 423 F.Supp. 1190 (N.D.W.Va.1976). II. ADMINISTRATIVE EXHAUSTION As the district court noted, once the plaintiff was formally denied admission to the college’s nursing program, she sought an additional, yet informal, reconsideration through the" } ]

[ { "docid": "20332039", "title": "", "text": "- U.S. -, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1980); National Ass’n for the Advancement of Colored People v. The Medical Center, Inc., 599 F.2d 1247, 1258-59 (3d Cir. 1979); Davis v. Southeastern Comm. College, 574 F.2d 1158, 1159 (4th Cir. 1978), rev’d on other grounds, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979); United Handicapped Federation v. Andre, 558 F.2d 413, 415 (8th Cir. 1977); Kampmeier v. Nyquist, 553 F.2d 296, 299 (2d Cir. 1977); Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1284-87 (7th Cir. 1977). The Supreme Court’s recent decision in Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), arising under an analogous statute, reinforces the conclusion that a private right of action exists under § 504. In Cannon, the Court implied a right of action under Title IX of the Education Act Amendments of 1972, 20 U.S.C. § 1681 et seq. (1976 ed.) which forbids sex discrimination in federally-funded educational programs. Section 504 forbids discrimination against otherwise qualified ha 'dicapped people in federally-assisted programs, and does so in nearly identical language. Moreover, administrative remedies under both statutes are very similar, since both were modeled on Title VI of the Civil Rights Act of 1964. 42 U.S.C. § 2000d (1976 ed.). Thus private rights of action appear to exist under both statutes, and the existence of these rights is not contingent upon the exhaustion of administrative remedies under the statutes. See Cannon v. University of Chicago, supra, at 703-08, 99 S.Ct. at 1961-1963. The legislative history of the attorney’s fee provision explicitly supports the existence of a private right of action under § 504 of the Rehabilitation Act of 1973. The House Report on the 1978 Amendments stated that The new section [505] permits courts, at their discretion, to award to the prevailing party in any action or proceeding to enforce sections 501, 503, or 504 of the act a reasonable allowance to cover the costs of attorney’s fees .... [S]ection 504 relates to nondiscrimination against the handicapped by recipients of federal assistance. H.R.Rep.No.1149, 95th Cong., 2d Sess." }, { "docid": "954808", "title": "", "text": "that right. In 29 U.S.C. § 793, Congress provided for enforcement of the Rehabilitation Act of 1973 against employers receiving money under federal contracts by directing that aggrieved individuals should file a complaint with the Secretary of Labor, who would take appropriate action. However, 29 U.S.C. § 794 provides no specific enforcement mechanism for individuals such as plaintiff Kimber Sherer, who are given rights under the Act to be free from discrimination while attending educational institutions which receive federal funds. Defendants therefore contend that plaintiff has no private cause of action arising under the Rehabilitation Act of 1973. Plaintiffs, on the other hand, point to the clear language of the statute in claiming a right not to be excluded from benefits granted other students of the North Kansas City School District. Plaintiffs rely upon the growing body of case law indicating that handicapped persons have a right against arbitrary classification, as expressed in § 504 of the Rehabilitation Act: “no otherwise qualified handicapped individual” shall be denied the right to participate in programs which are federally funded. See Lloyd v. Regional Transp. Authority, 548 F.2d 1277 (7th Cir. 1977); Sites v. McKenzie, 423 F.Supp. 1190 (N.D. W.Va.1976); Gurmankin v. Costanzo, 411 F.Supp. 982 (E.D.Pa.1976); Hairston v. Drosick, 423 F.Supp. 180 (S.D.W.Va.1976); Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir. 1977); Barnes v. Converse College, No. 77-1116, 436 F.Supp. 635 (D.S.C.1977); see also Bartels v. Biernat, 405 F.Supp. 1012 (E.D.Wis.1975); Crawford v. Univ. of North Carolina, No. C-77-173-D, 440 F.Supp. 1047 (M.D.N.C.1977). It is true that some courts have found an implied right of action in § 504 of the Rehabilitation Act of 1973. Hairston v. Drosick, supra; Sites v. McKenzie, supra. The genesis of the private-right-of-action theory lies in Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974). Lau was a class action brought under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, involving 1,800 San Francisco school children of Chinese ancestry who claimed that they were being denied the right to a meaningful education because they were unable to speak" }, { "docid": "1168014", "title": "", "text": "Education agreed to inquire into any school district in which there was a \"significant variance\" between the expected and actual percentage of Mexican-Americans in E.M.R. classes, to collect relevant data and to develop a plan to eliminate any such variances or disproportionate enrollments. . Appellant does not argue that there is no private right of action under these federal statutes. Congress expressly recognized a private right of action to enforce the requirements of the EAH-CA. See 20 U.S.C. § 1415(e)(2), 34 C.F.R. § 121a.511, formerly 45 C.F.R. § 121a.511; Mt. View-Los Altos Union High School District v. Sharron B.H., 709 F.2d 28, 29 (9th Cir.1983) (EAHCA grants a private right of action). Private rights of action are recognized under Title VI, see, e.g., Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974); see also Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (Title IX), and under the Rehabilitation Act. see Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1285 (7th Cir.1977); Leary v. Crapsey, 566 F.2d 863, 865 (2d Cir.1977). . 28 U.S.C. § 2281 provided: “An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.\" This statute was repealed in 1976. Pub.L. 94-381. The repeal does not apply to actions like the present case commenced on or before August 12, 1976. Id., § 7 (1976). . Even though the named plaintiffs claim not to be handicapped (retarded), they are still protected by this Act. The Rehabilitation Act provides that it covers persons who are \"regarded” as handicapped. 29 U.S.C. § 706(7)(B); 29 C.F.R. § 32.3. . Appellant also argues" }, { "docid": "9809677", "title": "", "text": "980 (1979); Leary v. Crapsey, 566 F.2d 863 (2d Cir.1977); United Handicapped Fed’n v. Andre, 558 F.2d 413 (8th Cir.1977); Lloyd v. Regional Transp. Auth., 548 F.2d 1277 (7th Cir.1977). The congressional debate on the amendments demonstrates that Congress knew that the courts had interpreted section 504 to provide this means of enforcement. 124 Cong. Rec. 37,508 (statement of Sen. Stafford) (“[t]o date we have permitted certain private enforcement of Title V” ). In 1978, Congress also added section 505, a remedy provision, to the Rehabilitation Act. Section 505(a)(2) grants the “remedies, procedures, and rights” available under Title VI of the Civil Rights Act, 42 U.S.C. §§ 2000d to 2000d-2, to persons “aggrieved by any act or failure to act by any recipient of Federal financial assistance or Federal provider of such assistance under [section 504].” Section 2000d, Title Vi’s central provision, prohibits discrimination based on race “under any program or activity receiving Federal financial assistance.” Section 2000d-l sets forth the administrative requirements for federal departments and agencies that manage federal financial assistance programs. Section 2000d-2 provides judicial and administrative remedies for persons challenging department or agency action taken under section 2000d-l. Congress originally modeled section 504 on Title VI and on Title IX of the Education Amendments of 1972. Kling, 633 F.2d at 878 n. 3. Title IX prohibits discrimination based on sex “under any education program or activity receiving Federal financial assistance,” 20 U.S.C. § 1681, and was itself modeled on Title VI. Cannon, 441 U.S. at 694, 99 S.Ct. at 1956. In the congressional debates on section 505, Senator Bayh asked and Senator Cranston confirmed that “section 505 merely extends to the handicapped the same remedies, procedures and rights already extended” through Titles VI and VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. 124 Cong.Rec. 30,349. Neither Title VI nor Title IX, like pre-1978 section 504, grants an express private right of action to people alleging discrimination under the Acts. They provide only for review of the administrative and regulatory actions taken by an agency in administering its" }, { "docid": "13634374", "title": "", "text": "free appropriate public education, (2) that handicapped students be educated with nonhandicapped students to the maximum extent appropriate to their needs, (3) that educational agencies undertake to identify and' locate all unserved handicapped children, (4) that evaluation procedures be improved in order to avoid the inappropriate education that results from the misclassification of students, and (5) that procedural safeguard be established to enable parents and guardians to influence decisions re garding the evaluation and placement their children. of 45 C.F.R. Pt. 84, App. A at 384 (1977). It is evident that the allegations of plaintiffs touch on new and potentially very important federal rights. They contend that they were deprived of a hearing prior to the refusal to grant David Boxall a free appropriate public education, and they contend that, if the right to an appropriate education is to be meaningful, it must encompass — even at considerable expense— the provision of a full-time tutor in the home of an autistic child who cannot fit into another educational setting. Clearly such a situation is within the scope of the statutory scheme. Nevertheless, defendant contends that this right cannot be pursued in this forum at this time. The contention is mistaken, as can be shown by an examination of the arguments propounded in favor of the motion to dismiss. MOTION TO DISMISS I. The Private Right of Action Under Section 504 of the Rehabilitation Act of 1973 Defendant’s basic contention appears to be that the conduct of defendants cannot be challenged by a private action under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. This argument is plainly mistaken. Under prevailing authority, a private right of action does exist to enforce the provisions of section 504 and the regulations issued thereunder. All the circuit courts that have ruled on the issue have found such a right. See Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977) (class action by mobility-disabled persons seeking to make public transportation accessible to them); Leary v. Crapsey, 566 F.2d 863, 865 (2d Cir. 1977) (private action by mobility handicapped class);" }, { "docid": "13634375", "title": "", "text": "the scope of the statutory scheme. Nevertheless, defendant contends that this right cannot be pursued in this forum at this time. The contention is mistaken, as can be shown by an examination of the arguments propounded in favor of the motion to dismiss. MOTION TO DISMISS I. The Private Right of Action Under Section 504 of the Rehabilitation Act of 1973 Defendant’s basic contention appears to be that the conduct of defendants cannot be challenged by a private action under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. This argument is plainly mistaken. Under prevailing authority, a private right of action does exist to enforce the provisions of section 504 and the regulations issued thereunder. All the circuit courts that have ruled on the issue have found such a right. See Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977) (class action by mobility-disabled persons seeking to make public transportation accessible to them); Leary v. Crapsey, 566 F.2d 863, 865 (2d Cir. 1977) (private action by mobility handicapped class); Davis v. Southeastern Community College, 574 F.2d 1158, 1159 (4th Cir. 1978) (deaf individual challenging denial of admission to nursing school); United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir. 1977) (class action by mobility handicapped). Further, as pointed out by the Seventh Circuit’s carefully-reasoned opinion in Lloyd, supra, both the legislative history of the Rehabilitation Act and the analogy to Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, as impliedly interpreted in Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), support the existence of such a right. Indeed, the argument for a private right under section 504 is probably even stronger than that under Title VI, given the suggestion by four members of the Supreme Court recently that the right under Title VI may still not be firmly established. See Regents of the University of California v. Bakke, 438 U.S. 265, 279-284, 98 S.Ct. 2733, 2743-2745, 57 L.Ed.2d 750, 765-67 (1978). As the Seventh Circuit explained in Lloyd, 548 F.2d at 1285-86, Congress" }, { "docid": "10583337", "title": "", "text": "action existed to enforce the statute. See Lloyd v. Reg’l Transp. Auth., 548 F.2d 1277, 1280-81 (7th Cir.1977); Kampmeier v. Nyquist, 553 F.2d 296, 299 (2d Cir.1977) (following Lloyd); United Handicapped Fed’n v. Andre, 558 F.2d 413, 415 (8th Cir.1977) (following Lloyd); Leary v. Crapsey, 566 F.2d 863, 865 (2d Cir.1977); Davis v. Southeastern Cmty. Coll., 574 F.2d 1158, 1159 (4th Cir.1978) (following Lloyd), rev’d on other grounds, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979); NAACP v. Med. Ctr., Inc., 599 F.2d 1247, 1258-59 (3d Cir.1979) (following Lloyd); Kling v. County of Los Angeles, 633 F.2d 876, 878 (9th Cir.1980) (following Lloyd). Congress’s subsequent amendments to the Rehabilitation Act reinforce, indeed compel, the conclusion that a private right of action exists to enforce Section 504. First, Congress added Section 505(a)(2) to the Rehabilitation Act in 1978. The provision provides that the “remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title.” 29 U.S.C. § 794a(a)(2). At the time, “the courts, including [the Supreme Court], ha[d] unanimously concluded or assumed that a private action may be maintained under Title VI.” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 419, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (Stevens, J., concurring in part and dissenting in part). As the Supreme Court has explained, Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change. So too, where, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute. Lorillard v. Pons, 434 U.S. 575, 580-81, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978) (internal citations omitted). Thus Congress, in es sence, provided a private right of action" }, { "docid": "19304184", "title": "", "text": "implication in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), are all satisfied by the instant claim. First, developmentally disabled individuals are the “especial benefi[ciaries]” of the Act. Second, evidence of legislative intent to create a private right of action, discussed supra, is substantial. Third, without a private right of action to focus on and redress individual past violations and deter future ones, the guarantees promised by the Act would have little effective meaning. A remedial scheme that addressed only institution-wide wrongs and ignored individual wrongs would be inconsistent with Congress’ central concern to correct the past neglect by large institutions of individual rights and differences in needs and potential. Compare with Wyatt v. Aderholt, 503 F.2d 1305, 1316 (5th Cir. 1974). Finally, the action described by the Court would not tread on the traditional state turf of malpractice actions. A statute-based action that remedied a treatment plan is different in kind from a malpractice action for negligence. Compare with Patton v. Dumpson, 425 F.Supp. 621 (S.D.N.Y.1977) (constitutional basis rejected). Similar consideration of the four Cort factors has convinced several courts that the federal statute prohibiting discrimination against the handicapped, 29 U.S.C. sec. 794, creates an affirmative right enforceable by an action brought by a class of wronged, handicapped individuals. Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977), relying on Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974). Accord Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977); United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir. 1977). B. Constitutional Claims Because the statutory right is at least as broad as any constitutional right to treatment, the Court need not reach the difficult question of whether Timothy has a valid constitutional claim. E. g., Rouse v. Cameron, 373 F.2d 451; see, also, Lau v. Nichols, 414 U.S. at 566, 94 S.Ct. 786, 39 L.Ed.2d 1. The constitutional issue is made particularly difficult by the circumstances of Timothy’s confinement. Although the facts are not completely known to the Court, it appears that Timothy was committed to" }, { "docid": "23183317", "title": "", "text": "(2d Cir. 1981) (disagreeing with district court that exhaustion in this instance would inevitably prove futile). . The Rules of Decision Act, part of the Judiciary Act of 1789, states: [T]he laws of the several states, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply. Rev.Stat. § 721 (1875). Later amended and codified at 28 U.S.C. § 1652 (1952). . The dissent seeks to construct a congressional intent by piecing together a few fragments of sentences and clauses from statements of congressmen dealing with the EAHCA legislation. However, the Supreme Court, in Consumer Products Safety Commission v. GTE Sylvania, 447 U.S. 102, 100 S.Ct. 2051, at 2061, 64 L.Ed.2d 766 (1980), recently warned against undue reliance on such a technique. . All circuits that have ruled on the issue have found a private right of action to enforce the provisions of Section 504 of the Rehabilitation Act of 1973. See Camenisch v. Univ. of Texas, 616 F.2d 127, 131 (5th Cir. 1980) (en banc); vacated and remanded on other grounds, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); NAACP v. The Medical Center, Inc., 599 F.2d 1247, 1258-59 (3d Cir. 1979); Davis v. Southeastern Community College, 574 F.2d 1158, 1159 (4th Cir. 1978); Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977) (per curiam); United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir. 1977); Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977). The Supreme Court has carefully declined to address the question. See University of Texas v. Camenisch, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) (vacating and remanding to district court for further proceedings); Southeastern Community College v. Davis, 442 U.S. 397, 405 n.5, 99 S.Ct. 2361, 2366 n.5, 60 L.Ed.2d 980 (1979). As for Title VI, Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974) has been construed to support the existence of such a" }, { "docid": "4092471", "title": "", "text": "794. Evidence presented at trial revealed the following: Mr. Crumley stated that Plaintiff Longoria would have been hired by HCISD were it not for TEA regulations; that Plaintiff was granted a Chauffeur’s license by the Texas Department of Public Safety with the restrictions of automatic transmission or artificial leg; and that uncontroverted medical evidence from Dr. Herman Keillor established that Plaintiff could run, hop, climb stairs and was in no way restricted in mobility by his artificial leg. After hearing the above evidence presented at trial, the Court declares Plaintiff Longoria to be an otherwise qualified individual for purposes of the Rehabilitation Act of 1973. Plaintiff contends that he was denied employment with HCISD because of his handicap, without regard to his ability to perform, in violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, 42 U.S.C. § 1983 and the Due Process and Equal Protection Clauses of the United States Constitution. Jurisdiction is asserted pursuant to 28 U.S.C. § 1331; 28 U.S.C. §§ 1343(3) and 1343(4); 42 U.S.C. § 1983 and the Fifth and Fourteenth Amendments to the United States Constitution. The Plaintiff seeks injunctive and declaratory relief and damages in this action. I. The state and local Defendants contend at the outset that § 504 of the “Act” does not provide a private cause of action to individuals like Mr. Longoria. Federal appellate courts which have considered this contention in other circuits have ruled that an implied cause of action exists to private persons to enforce rights created under 29 U.S.C. § 794. See, NAACP v. The Medical Center, Inc., 599 F.2d 1247 (3rd Cir.1979); Davis v. Southeastern Community College, 574 F.2d 1158 (4th Cir.1978); rev’d on other grounds, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979); United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir.1977); Kampmeir v. Nyquist, 553 F.2d 296 (2d Cir.1977); Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir.1977); Leary v. Crapsey, 566 F.2d 863 (2d Cir.1977). Likewise, the Fifth Circuit has recognized that a private cause of action exists under section 504 of the" }, { "docid": "10583336", "title": "", "text": "we must make a series of inquiries. First, we examine the scope of the private right of action that exists to enforce Section 504. We conclude that since Section 504’s private right of action is contiguous with Title VI’s-for which an implied, not express, right of action exists-plaintiffs can bring suit to enforce personal rights that Section 504 creates, and only such personal rights. Second, we examine Section 504 and the pertinent HUD regulations to determine whether the HUD regulations construe any personal right that Section 504 creates. We ultimately conclude that while the HUD regulations we examine here may construe rights or obligations that Section 504 creates, they do not construe personal rights that Section 504 creates. We therefore find that the Rehabilitation Act does not provide a private right of action to enforce these particular HUD regulations. 1. The Rehabilitation Act, as originally enacted, did not explicitly provide a private right of action. In the years following its enactment, however, a number of courts (including this Court) concluded that an implied right of action existed to enforce the statute. See Lloyd v. Reg’l Transp. Auth., 548 F.2d 1277, 1280-81 (7th Cir.1977); Kampmeier v. Nyquist, 553 F.2d 296, 299 (2d Cir.1977) (following Lloyd); United Handicapped Fed’n v. Andre, 558 F.2d 413, 415 (8th Cir.1977) (following Lloyd); Leary v. Crapsey, 566 F.2d 863, 865 (2d Cir.1977); Davis v. Southeastern Cmty. Coll., 574 F.2d 1158, 1159 (4th Cir.1978) (following Lloyd), rev’d on other grounds, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979); NAACP v. Med. Ctr., Inc., 599 F.2d 1247, 1258-59 (3d Cir.1979) (following Lloyd); Kling v. County of Los Angeles, 633 F.2d 876, 878 (9th Cir.1980) (following Lloyd). Congress’s subsequent amendments to the Rehabilitation Act reinforce, indeed compel, the conclusion that a private right of action exists to enforce Section 504. First, Congress added Section 505(a)(2) to the Rehabilitation Act in 1978. The provision provides that the “remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 shall be available to any person aggrieved by any act or failure to act by" }, { "docid": "12776725", "title": "", "text": "discussed in Lloyd v. Regional Transp. Auth., 548 F.2d 1277 (7th Cir. 1977). . The implication of a private cause of action is supported by the legislative approach to implementation of Section 504 which was intended to “permit a judicial remedy through a private action.” S.Rep. No. 93-1297, 93d Cong., 2d Sess. 39-40 (1974), reprinted in [1974] 4 U.S. Code Cong. & Ad. News, pp. 6373, 6391. This implied cause of action may be utilized by mobility-handicapped persons to enforce the antidiscrimination policy of Section 504 in a mass transit context. United Handicapped Fed’n v. Andre, 558 F.2d 413 (8th Cir. 1977); Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977); Lloyd v. Regional Transp. Auth., 548 F.2d 1277 (7th Cir. 1977); Vanko v. Finley, 440 F.Supp. 656 (N.D.Ohio 1977); Bartels v. Biernat, 427 F.Supp. 226 (E.D.Wis.1977); Michigan Paralyzed Veterans of America v. Coleman, 451 F.Supp. 7 (E.D.Mich.1977). . The Supreme Court pretermitted the question whether an implied private cause of action exists to enforce Section 504, 29 U.S.C. § 794, in Southeastern Community College v. Davis, 442 U.S. 397, 404 n.5, 99 S.Ct. 2361, 2366 n.5, 60 L.Ed.2d 980, 987 n.5 (1979). However, the opinion of Justice Stevens in Regents of California v. Bakke appears to recognize a private cause of action to enforce this section of the Rehabilitation Act of 1973, 29 U.S.C. § 794. 438 U.S. 265, 420 & n.27, 98 S.Ct. 2733, 2815 & n.27, 57 L.Ed.2d 750, 852 & n.27 (1978). . While the issue was sufficiently presented to be preserved, it lurked partially submerged and was expressed clearly before us in a brief amicus curiae by the National Center For Law and the Handicapped, Inc. Plaintiffs subsequently addressed the issue in a letter filed a year after the case was briefed and one week before oral argument. . A “court cannot be expected to utilize its discretion in the same manner as an agency charged with the broad administration of the statute.” Note, Implying Civil Remedies from Federal Regulatory Statutes, 77 Harv.L.Rev. 285, 292 (1963). While the DOT and HEW might be content to" }, { "docid": "13634376", "title": "", "text": "Davis v. Southeastern Community College, 574 F.2d 1158, 1159 (4th Cir. 1978) (deaf individual challenging denial of admission to nursing school); United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir. 1977) (class action by mobility handicapped). Further, as pointed out by the Seventh Circuit’s carefully-reasoned opinion in Lloyd, supra, both the legislative history of the Rehabilitation Act and the analogy to Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, as impliedly interpreted in Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), support the existence of such a right. Indeed, the argument for a private right under section 504 is probably even stronger than that under Title VI, given the suggestion by four members of the Supreme Court recently that the right under Title VI may still not be firmly established. See Regents of the University of California v. Bakke, 438 U.S. 265, 279-284, 98 S.Ct. 2733, 2743-2745, 57 L.Ed.2d 750, 765-67 (1978). As the Seventh Circuit explained in Lloyd, 548 F.2d at 1285-86, Congress enacted the Rehabilitation Act Amendments of 1974 under the clear impression that the wording therein would, consistent with Lau v. Nichols, which had just been decided, “permit a judicial remedy through a private action.” In other words, the language in the 1974 amendments was chosen partly because it was believed that it vyould create a private right of action to enforce the rights created by the statute. If a private right is recognized, then it must be available to review questions of what constitutes an .“appropriate” education and whether the educational services and facilities offered are “comparable to the other facilities, services, and activities provided for the non-handicapped.” 45 C.F.R. § 84.34(c). The conduct that plaintiffs complain about is thus subject to judicial scrutiny through a private action. A further issue, however, is whether plaintiffs pursued their administrative remedies prior to seeking judicial review. There is strong authority conditioning the right to proceed in a private action on the exhaustion of administrative remedies. At the time that Lloyd was decided, for example, no procedures for" }, { "docid": "12776724", "title": "", "text": "49 C.F.R. § 613.204, see note 13, supra, satisfied the requirement of special efforts in program development. Finally, the progress-in-implementation requirement was inapplicable because the New Orleans area had no previously programmed projects. . The amendment to Section 504 by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978, Pub.L. No. 95-602, Title I §§ 119, 122(d)(2), 92 Stat. 2982, 2987, which extended its application to programs conducted by any federal executive Agency or by the United States Postal Service and renumbered the section of the Act defining ‘‘handicapped individual,” is not relevant to the issue presented here. . “Section 504 was enacted to prevent discrimination against all handicapped individuals, regardless of their need for, or ability to benefit from, vocational rehabilitation services, in relation to Federal assistance in . .. transportation . . . programs.” S.Rep. No. 93-1297, 93d Cong., 2d Sess. 38 (1974), reprinted in, [1974] 4. U.S. Code Cong. & Ad. News, pp. 6373, 6388. The relevant legislative history of the 1973 Act and the Rehabilitation Act amendments of 1974 is discussed in Lloyd v. Regional Transp. Auth., 548 F.2d 1277 (7th Cir. 1977). . The implication of a private cause of action is supported by the legislative approach to implementation of Section 504 which was intended to “permit a judicial remedy through a private action.” S.Rep. No. 93-1297, 93d Cong., 2d Sess. 39-40 (1974), reprinted in [1974] 4 U.S. Code Cong. & Ad. News, pp. 6373, 6391. This implied cause of action may be utilized by mobility-handicapped persons to enforce the antidiscrimination policy of Section 504 in a mass transit context. United Handicapped Fed’n v. Andre, 558 F.2d 413 (8th Cir. 1977); Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977); Lloyd v. Regional Transp. Auth., 548 F.2d 1277 (7th Cir. 1977); Vanko v. Finley, 440 F.Supp. 656 (N.D.Ohio 1977); Bartels v. Biernat, 427 F.Supp. 226 (E.D.Wis.1977); Michigan Paralyzed Veterans of America v. Coleman, 451 F.Supp. 7 (E.D.Mich.1977). . The Supreme Court pretermitted the question whether an implied private cause of action exists to enforce Section 504, 29 U.S.C. § 794, in Southeastern Community College" }, { "docid": "5655189", "title": "", "text": "ignore, but in fact to recognize his handicap, and to provide him special services not given to other students. Courts have not been as consistent in applying an equal protection analysis to handicapped individuals. Thus, in United Handicapped Federation v. Andre, 409 F.Supp. 1297 (D.Minn.1976), the court found that the Rehabilitation Act of 1973 and 42 U.S.C. § 1983 did not provide a cause of action on behalf of wheelchair-handicapped individuals so as to require a metropolitan transit authority to provide specially equipped buses. See Gurmankin v. Constanzo, supra, 411 F.Supp. at 992 n. 8, where the court found a blind teacher protected under due process reasoning but expressly rejected the claim that blind persons constitute a suspect classification for equal protection purposes. However, another line of cases does support plaintiff’s contention that he has a private cause of action under the Rehabilitation Act of 1973. Thus in Hairston v. Drosick, 423 F.Supp. 180 (S.D.W.Va.1976), the court ruled that a handicapped school girl had a private cause of action under 29 U.S.C. § 794 and required the defendant to make necessary expenditures to enable her to attend school with non-handicapped chil dren. In Sites v. McKenzie, 423 F.Supp. 1190 (N.D.W.Va.1976), the court held that the Rehabilitation Act of 1973 forbade the exclusion of handicapped persons from a prison vocational rehabilitation program. The most searching examination of whether a handicapped individual has a private cause of action under the Rehabilitation Act is found in Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977). In that case it was alleged that the transportation authority was contemplating purchasing new equipment; utilizing federal funds, without considering the needs of handicapped individuals. The court found that a private cause of action existed relying upon Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974). Lau was a class action comprising 28,000 school children of Chinese ancestry who claimed that they were denied the right to a meaningful education because of their not being able to speak English. The Supreme Court relied exclusively upon Title VI of the Civil Rights Act" }, { "docid": "22370186", "title": "", "text": "irreparable injury. We are confronted, however, with the district court’s issuance of mandatory injunctive relief, in reliance on which Doe has entered NYU and apparently left her position in Washington. It therefore becomes advisable to consider the merits of her claim, not only for the purpose of determining whether she has shown a likelihood of success but also to ascertain whether the district court properly denied summary judgment. The Merits Section 504 of the Rehabilitation Act of 1973 provides that “[n]o otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . . ” 29 U.S.C. § 794 (Supp. Ill 1979). Although the Supreme Court has not ruled on the question of whether § 504 creates a private right of action in favor of a handicapped person injured by its violation, see Southeastern Community College v. Davis, 442 U.S. 397, 404 n.5, 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979), we and other circuits have ruled that it does. Leary v. Crapsey, 566 F.2d 863, 865 (2d Cir. 1977); Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977); United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir. 1977). Since the statute, which is patterned after § 601 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d and § 901 of the Education Amendments of 1972, 20 U.S.C. § 1681, was clearly intended for the special benefit of handicapped persons and a private right of action is both consistent with the underlying purposes of the legislative scheme and not one traditionally relegated to state law, the requirements of Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975), for such an action are met. In order to make out a case based on a violation of § 504 a plaintiff must prove (1) that she is a “handicapped person” under the Act, (2)" }, { "docid": "5742026", "title": "", "text": "statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? (Citations omitted.) Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1284-8 (7th Cir. 1977) offers an exhaustive discussion of the import of Cort v. Ash in the present context. There, the court concluded that § 504 extended affirmative rights to all handicapped individuals and held that such rights are enforceable in the courts by a private right of action. The court further held that Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974) was controlling in the 504 context: Because of the near identity of language in § 504 of the Rehabilitation Act of 1973 and § 601 of the Civil Rights Act of 1964, Lau is dispositive. Therefore, we hold that § 504 of the Rehabilitation Act, at least when considered with the regulations which now implement it, establishes affirmative rights and permits this action to proceed. 548 F.2d at 1281. I am in full agreement with the Court of Appeals for the Seventh Circuit. The named plaintiffs are among the class specifically benefited by the enactment of the statute. Thus plaintiffs meet the standard established by the first criterion in the Cort analysis. The legislative history of 1974 Amendments to the Rehabilitation Act evidences the legislative intention to create a private cause of action. In considering the Act, the Committee on Labor and Public Welfare emphasized the parallels between the Act and the 1964 Civil Rights Act, 42 U.S.C. § 2000d. As noted in the Committee Report to the Senate, the legislature endorsed the inclusion of a private right of action as a means" }, { "docid": "5655190", "title": "", "text": "required the defendant to make necessary expenditures to enable her to attend school with non-handicapped chil dren. In Sites v. McKenzie, 423 F.Supp. 1190 (N.D.W.Va.1976), the court held that the Rehabilitation Act of 1973 forbade the exclusion of handicapped persons from a prison vocational rehabilitation program. The most searching examination of whether a handicapped individual has a private cause of action under the Rehabilitation Act is found in Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977). In that case it was alleged that the transportation authority was contemplating purchasing new equipment; utilizing federal funds, without considering the needs of handicapped individuals. The court found that a private cause of action existed relying upon Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974). Lau was a class action comprising 28,000 school children of Chinese ancestry who claimed that they were denied the right to a meaningful education because of their not being able to speak English. The Supreme Court relied exclusively upon Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, to grant relief. The majority opinion noted that the Department of Health, Education and Welfare (hereinafter referred to as HEW) had enacted regulations and guidelines compelling the result and further that the school had contractually obligated itself to carry out those guidelines by receiving federal funds. In a concurring opinion, Justice Stewart noted that the defendants did not question the plaintiffs’ standing to bring the action, as third-party beneficiaries of the contract. Justice Blackmun also concurred in the decision, and was joined by the Chief Justice. He emphasized that the case involved a large number of students and that the result might not be the same without the large number of persons involved. The Seventh Circuit in Lloyd, relying upon the Lau decision, held that the Rehabilitation Act grants affirmative rights, derived from the then proposed regulations. (Final regulations have now been issued by HEW.) The court went on to hold, after examining the legislative history, that handicapped individuals have a private cause of action under the Rehabilitation Act" }, { "docid": "9486947", "title": "", "text": "local defendants under section 504 of the Rehabilitation Act, and the grant of summary judgment in favor of the federal defendants. I. The Section 504 Claim Against the Local Defendants Section 504 provides that “[n]o otherwise qualified handicapped individual ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794 (1976). While conceding that current interpretations of section 504 hold that it supports a private right of action, see, e.g., Baker v. Bell, 630 F.2d 1046, 1055 (5th Cir. 1980); Leary v. Crapsey, 566 F.2d 863, 865 (2d Cir. 1977) (per curiam); United Handicapped Federation v. Andre, 558 F.2d 413, 415 (8th Cir. 1977); Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1284-87 (7th Cir. 1977), defendants argued, and the District Court held, that section 504 does not permit the relief plaintiffs seek here. Judge Weinfeld based his decision primarily on a consideration of two cases. In the first, Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), the Supreme Court held that section 504 does not impose an “affirmative-action obligation” on a state educational institution, id. at 411, 99 S.Ct. at 2369, requiring it to make “substantial modifications in [its] programs,” id. at 405, 99 S.Ct. at 2366, or to incur “undue financial and administrative burdens,” id. at 412, 99 S.Ct. at 2370, in an effort to accommodate handicapped persons whose disabilities render them not “otherwise qualified” for such programs. The Court ruled against the plaintiff, who suffered from a severe hearing disability that prevented her from participating in the normal training for nurses, because enrolling her would have required a “fundamental alteration in the nature” of the defendant college’s registered nursing program. Id. at 410, 99 S.Ct. at 2369. In the second case, APTA, supra, the District of Columbia Circuit applied Davis in the mass transportation context and held that the “extensive modifications of existing systems” required by the 1979 “accessibility” regulations, and the “extremely heavy" }, { "docid": "5009676", "title": "", "text": "requirements of Federal Rule 23(aXl) are not satisfied. For reasons discussed below in connection with standing, the Court concludes that plaintiffs have suffered the requisite injury to entitle them to bring this suit either on their own behalf or on behalf of the class, and the Court also concludes that the commonality, numerosity and typicality requirements of Rule 23(a)(1) are met. However, the Court agrees with defendants that class certification is unnecessary where only injunctive and declaratory relief may be awarded as the Court concludes to be the case here (see p. 1248 infra), and the relief granted will automatically inure to the benefit of all members of the proposed class. See, e. g., Galvan v. Levine, 490 F.2d 1255 (2d Cir. 1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2652, 41 L.Ed.2d 240 (1974). SUBJECT MATTER JURISDICTION Plaintiffs allege jurisdiction under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. & 794; EHA, 20 U.S.C. §§ 1401 et seq. & 1415; and the Civil Rights Act of 1871, 42 U.S.C. § 1983, 28 U.S.C. § 1343(3). A number of different issues require discussion under the general rubric of subject matter jurisdiction. A. Private Right of Action There is no longer any doubt that an implied right of action exists under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. As Judge Mishler stated for this Court in Whitaker v. Bd. of Higher Education of City of New York, 461 F.Supp. 99, 107 (E.D.N.Y.1978): “Since Lloyd [v. Regional Trans. Auth., 548 F.2d 1277 (7th Cir. 1977], every circuit court which has considered the question, including our own, has sustained the existence of a private cause of action under section 504. See Davis v. Southeastern Community College, 574 F.2d 1158 (4th Cir. 1978); Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977); United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir. 1977); Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir. 1977).” The EHA contains an express cause of action in 20 U.S.C. § 1415(e)2: “Any party aggrieved by the findings and decision made [by the" } ]

[ { "docid": "4645701", "title": "", "text": "deficiency was mailed? In my opinion, it did. The statement of claim says plainly enough that the parties stipulated that the plaintiff’s “correct tax liability” was $26,046.54, and that upon this stipulation the Board entered its order. The Government does not contend that this procedure was effective compromise under Sec. 3229 of the Revised Statutes, 26 U.S.C.A. Int. Rev.Code, § 3761, and I fully agree. It is also true that the decision of the Board of Tax Appeals did not expressly adjudicate the question of the expiration of the period of limitations. It does not appear here that the question was raised before the Board. It undoubtedly could have been, and, of course, there may have been matters of waiver or extensions suspending the running of the period. All this, of course, is speculation, and, for the purpose of this decision, it may be assumed that the question was not presented to the Board. Nevertheless, I think that the order of the Board must be taken as conclusively disposing of it. Although the Board is not a court, it did, by the Revenue Act of 1926, become a competent tribunal to finally adjudicate all questions (including the statute of limitations) involved in any peti tioner’s tax liability, subject only to review by the Circuit Court of Appeals. In constituting such a tribunal, Congress unquestionably intended its final orders to be conclusive of all matters, not only things actually litigated but those which might have been litigated, where the same parties come into court again upon the same issues. Unless the principles of res judicata are applied to the Board’s decisions, the usefulness of the practice introduced by the Act of 1926 will be greatly impaired. The Act of 1926 gave a taxpayer charged with a deficiency an election as to his procedure. He might pay and bring suit for a refund or he might petition the Board'for a redetermination, but whichever he did Congress intended that all questions involved should be disposed of in the proceeding chosen. In this case, when the parties before the Board stipulated as to the" } ]

[ { "docid": "12974975", "title": "", "text": "that in so far as the plaintiff’s suit was based on the allegation that the Board of Tax Appeals acted without competent authority, the court below did not have jurisdiction. The matter had been before the Board and that precluded a suit in any court for the recovery of the taxes involved in the appeal to the Board. The appellant further contends that the court below erred in holding that the statute of limitations had not run either when the Commissioner of Internal Revenue made the deficiency assessments against Strand Amusement Company or when the assessment was made against the appellant as a transferee of Strand’s assets. Admittedly, notice of the transferee assessment was given within a year of the assessments against the transferor, as prescribed by § 280(b) (1) of the Revenue Act of 1926, c. 27, 44 Stat. 9, 26 U.S.C.AJnt.Rev. Acts, page 213. The appellant argues, however, that the assessments against both Strand and the appellant were made out of time with relation to the finality of the decisions of the Board of Tax Appeals on the respective appeals of the transferor and the transferee. But the appellant may not now assert, as a basis for the alleged invalidity of the tax assessed against him, that the statute had run in favor of Strand Amusement Company. That question was properly a matter for the Board of Tax Appeals on the transferee’s appeal from the. Commissioner’s notice of deficiency against him. The decision, of the Board of Tax Appeals on the appellant’s petition embraced not only such matters as were raised on the appeal with respect to the tax but all matters that could have been raised as affecting the validity of the tax whereof he complained. Banker’s Reserve Life Co. v. United States, Ct.Cl., 44 F.2d 1000, certiorari denied 283 U.S. 836, 51 S.Ct. 485, 75 L.Ed. 1448; American Woolen Co. v. United States, Ct.Cl., 18 F.Supp. 783, affirmed on rehearing, Ct.Cl., 21 F.Supp. 1021, certiorari denied 304 U.S. 581, 58 S.Ct. 1054, 1055, 82 L.Ed. 1544; Ohio Steel Foundry Co. v. United States, Ct.Cl., 38 F.2d" }, { "docid": "1167238", "title": "", "text": "estoppel bars relitigation of an issue if three requirements are met: (1) that the issue at stake be identical to the one involved in the prior litigation; (2) that the issue have been actually litigated in the prior litigation; and (3) that the determination of the issue in the prior litigation have been a critical and necessary part of the judgment in that earlier action. We must first apply this test to each state judgment and then address any conflict between them. The Illinois judgment was a consent decree dismissing the action with prejudice. A litigant can be collaterally estopped from pursuing an issue by a consent decree if the parties intended the decree to resolve that issue. Courts have recognized, however, that parties often enter into consent judgments for reasons other than a disposition of the issues in the case. In that event, the second and third requirements articulated in In re Held are not satisfied and the consent judgment does not settle the issues for future litigation. The seminal case in this issue is United States v. International Building Co., 345 U.S. 502, 73 S.Ct. 807, 97 L.Ed. 1182 (1953). In that case, a taxpayer claimed that a prior consent decree stipulating that he owed no tax deficiency for three tax years barred the Internal Revenue Service from litigating a similar deficiency claim for subsequent tax years. The Supreme Court rejected this argument because the issue of the tax liability had not been litigated and determined on the merits in the consent decree. The Court concluded: Perhaps the settlement was made for a different reason, for some exigency arising out of the bankruptcy proceeding. As the case reaches us, we are unable to tell whether the agreement of the parties was based on the merits or on some collateral consideration. Certainly the [consent] judgments entered are res judicata of the tax claims for the years 1933, 1938 and 1939, whether or not the basis of the agreements on which they rest reached the merits. But unless we can say that they were an adjudication of the merits, the" }, { "docid": "13955460", "title": "", "text": "lower courts’ holdings are also supported by the doctrine of res judica-ta. Under this doctrine, a final judgment on the merits of an action precludes the parties from relitigating issues that were or could have been raised in that action. Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2427-28, 69 L.Ed.2d 103 (1981). In the tax context, once a taxpayer’s liability for a particular year is litigated, “a judgment on the merits is res judicata as to any subsequent proceeding involving the same claim and the same tax year.” Commissioner v. Sunnen, 333 U.S. 591, 598, 68 S.Ct. 715, 719-20, 92 L.Ed. 898 (1948). For res judicata purposes, an agreed or stipulated judgment is a judgment on the merits. See United States v. International Bldg. Co., 345 U.S. 502, 505-06, 73 S.Ct. 807, 808-09, 97 L.Ed. 1182, reh’g denied, 345 U.S. 978, 73 S.Ct. 1120, 97 L.Ed. 1392 (1953); Lawrence v. Steinford Holding B.V. (In re Dominelli), 820 F.2d 313, 316-17 (9th Cir.1987). The Bakers’ liability for the years in question was litigated before the Tax Court, and the Tax Court issued its final judgment before the Bankruptcy Court proceedings began. See I.R.C. §§ 7483, 7481(a). The Bankruptcy Court proceeding involved the same parties, and the issue the Bakers sought to raise — their statute of limitations defense — had been litigated before the Tax Court. Res judicata barred the Bankruptcy Court from revisiting the Tax Court’s decision. III. Because its jurisdiction was limited by 11 U.S.C. § 505(a)(2)(A) and the doctrine of res judicata, the Bankruptcy Court could not redetermine the Bakers’ tax liability as established by the stipulated Tax Court decision. AFFIRMED. . Some of the events surrounding the Berg & Allen tax shelters are discussed in a related Tax Court case. See Abeson v. Commissioner, 59 T.C.M. (CCH) 391, 1990 WL 40955 (1990), aff'd sub nom. Rivera v. Commissioner, 959 F.2d 241 (9th Cir.1992) (table). . An internal IRS memorandum, which was not provided to the Bakers or their lawyer at the time of settlement, indicates the IRS did not consider the" }, { "docid": "1700906", "title": "", "text": "99 L.Ed. 1122; United States v. Parker, 120 U.S. 89, 95, 7 S.Ct. 454, 30 L.Ed. 601; James v. Commissioner, 31 B.T.A. 712, 720. The rule is founded upon the necessity of according finality to court judgments. The parties, having had the opportunity to litigate their controversy, are conclusively bound by the compromise agreed upon. Their former cause of action is merged into the compromise judgment and is extinguished. The case of United States v. International Building Co., 345 U.S. 502, 506, 73 S.Ct. 807, 809, 97 L.Ed. 1182, is directly in point. That case involved a decision of the Tax Court entered pursuant to a stipulation of the parties. The court stated, “Certainly the judgments entered are res judicata of the tax claims for the years 1933, 1938, and 1939, whether or not the basis of the agreements on which they rest reached the merits.” A compromise settlement has also been held to bar the government, after settling its claim against a taxpayer by stipulation in the Tax Court, from collecting additional taxes. Lenny v. Williams, D.C., 143 F.Supp. 29. The plaintiffs, however, claim that they are equitably entitled to recover these taxes on the grounds that the stipulations were entered into under financial stress, which they say amounted to duress, and due to a mutual mistake of law. We do not believe either of these allegations warrant the setting aside of the settlement agreement.' The fact that plaintiffs did not have sufficient funds immediately available to pay the entire tax in the event they lost their suit, and, therefore, entered into the settlement, does not now give them a right to claim that the settlement was entered into under duress. It is well settled that the pressure of financial difficulties is not sufficient to constitute legal duress. Cf. Burnet v. Chicago Railway Equipment Co., 282 U.S. 295, 51 S.Ct. 137, 75 L.Ed. 349; Shaw & Truesdell Co. v. United States, D.C., 1 F.Supp. 834. This is especially so where no showing is made that the other party took advantage of opponent’s financial condition to assert unreasonable demands. There" }, { "docid": "1700905", "title": "", "text": "1943 by plaintiffs and four of their five children could not be recognized for Federal tax purposes. The plaintiffs now ask us to decide that the Commissioner was in error, that the partnership was bona fide and should have been recognized for all purposes, and they further ask that we recommend to Congress that it disregard the settlement, and refund to them the amount they paid pursuant to it. Clearly the plaintiffs are not legally entitled to recover because a judgment rendered on the merits constitutes an absolute bar to a subsequent action. Southern Pacific Railroad Co. v. United States, 168 U.S. 1, 18 S.Ct. 18, 42 L.Ed. 355; Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195; and numerous other cases. The fact that the judgment was entered by consent of the parties rather than upon a judicial determination of the controversy is immaterial; it is nonetheless a bar to a subsequent suit on the same cause of action. Lawlor v. National Screen Service Corp., 349 U.S. 322, 327, 75 S.Ct. 865, 99 L.Ed. 1122; United States v. Parker, 120 U.S. 89, 95, 7 S.Ct. 454, 30 L.Ed. 601; James v. Commissioner, 31 B.T.A. 712, 720. The rule is founded upon the necessity of according finality to court judgments. The parties, having had the opportunity to litigate their controversy, are conclusively bound by the compromise agreed upon. Their former cause of action is merged into the compromise judgment and is extinguished. The case of United States v. International Building Co., 345 U.S. 502, 506, 73 S.Ct. 807, 809, 97 L.Ed. 1182, is directly in point. That case involved a decision of the Tax Court entered pursuant to a stipulation of the parties. The court stated, “Certainly the judgments entered are res judicata of the tax claims for the years 1933, 1938, and 1939, whether or not the basis of the agreements on which they rest reached the merits.” A compromise settlement has also been held to bar the government, after settling its claim against a taxpayer by stipulation in the Tax Court, from collecting additional taxes. Lenny" }, { "docid": "12974976", "title": "", "text": "of Tax Appeals on the respective appeals of the transferor and the transferee. But the appellant may not now assert, as a basis for the alleged invalidity of the tax assessed against him, that the statute had run in favor of Strand Amusement Company. That question was properly a matter for the Board of Tax Appeals on the transferee’s appeal from the. Commissioner’s notice of deficiency against him. The decision, of the Board of Tax Appeals on the appellant’s petition embraced not only such matters as were raised on the appeal with respect to the tax but all matters that could have been raised as affecting the validity of the tax whereof he complained. Banker’s Reserve Life Co. v. United States, Ct.Cl., 44 F.2d 1000, certiorari denied 283 U.S. 836, 51 S.Ct. 485, 75 L.Ed. 1448; American Woolen Co. v. United States, Ct.Cl., 18 F.Supp. 783, affirmed on rehearing, Ct.Cl., 21 F.Supp. 1021, certiorari denied 304 U.S. 581, 58 S.Ct. 1054, 1055, 82 L.Ed. 1544; Ohio Steel Foundry Co. v. United States, Ct.Cl., 38 F.2d 144. As the liability of a transferee is fashioned from the liability of his transferor and as a transferee assessment is barred by the statute of limitations if the statute has run in favor of the transferor (United States v. Updike, 281 U.S. 489, 50 S.Ct. 367, 74 L.Ed. 984), the question of the timeliness of the assessments against Strand Amusement Company was necessarily involved in the appellant’s petition to the Board of Tax Appeals from the Commissioner’s proposed assessment against him, and the Board’s answer, adverse to the appellant’s present contention with respect to the assessment against Strand, is implied as a matter of law in the Board’s dismissal of the appellant’s petition. There remains, then, only the question as to the timeliness of the Commissioner’s assessment of the appellant. Under the Revenue Act of 1926 the assessment against the appellant as a transferee could be made within six years from the filing of the transferor’s return, made up of the five years allowed for an assessment against the transferor under § 277(a) (3)," }, { "docid": "1167239", "title": "", "text": "is United States v. International Building Co., 345 U.S. 502, 73 S.Ct. 807, 97 L.Ed. 1182 (1953). In that case, a taxpayer claimed that a prior consent decree stipulating that he owed no tax deficiency for three tax years barred the Internal Revenue Service from litigating a similar deficiency claim for subsequent tax years. The Supreme Court rejected this argument because the issue of the tax liability had not been litigated and determined on the merits in the consent decree. The Court concluded: Perhaps the settlement was made for a different reason, for some exigency arising out of the bankruptcy proceeding. As the case reaches us, we are unable to tell whether the agreement of the parties was based on the merits or on some collateral consideration. Certainly the [consent] judgments entered are res judicata of the tax claims for the years 1933, 1938 and 1939, whether or not the basis of the agreements on which they rest reached the merits. But unless we can say that they were an adjudication of the merits, the doctrine of estoppel by judgment would serve an unjust cause: it would become a device by which a decision not shown to be on the merits would forever foreclose inquiry into the merits. 345 U.S. at 505-06, 73 S.Ct. at 809, 97 L.Ed. at 1188. See also Lawlor v. National Screen Service Corp., 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122 (1955). The former Fifth Circuit Court of Appeals utilized an identical approach in determining the collateral estoppel effect accorded to consent judgments. In Kaspar Wire Works, Inc. v. Leco Engineering & Machine, Inc., 575 F.2d 530 (5th Cir.1978), the plaintiff in a patent dispute dismissed its lawsuit with prejudice as part of the settlement of an unrelated case. A year later, the defendant in the first case filed suit charging the original plaintiff with patent infringement and alleged that infringement was established by collateral estoppel because of the dismissal of the first action. The court disagreed reasoning that the parties did not intend the dismissal to resolve the infringement question on the merits." }, { "docid": "8738048", "title": "", "text": "the relitigation of the cause of action already adjudicated. Thus, collateral estoppel is an extension of the doctrine of res judicata. This being so, the doctrine would not only be applicable to the court rendering the first decision but would also be just as much binding on every other court as is res judicata, the only exception being perhaps where the original result was unjust or where fraud or some other factor invalidating the judgment was present. Commissioner of Internal Revenue v. Sunnen, supra, 333 U.S. at page 597, 68 S.Ct. at page 719; Scott, Collateral Es toppel by Judgment, 56 Harv.L.Rev. 1, 10. This court in Greenbaum v. United States, 17 F.Supp. 83, 84 Ct.Cl. 77, held that a final decision by the Tax Court as to a previous taxable year was res judicata to a cause of action arising in a subsequent taxable year when based on the same fact situation and involving the same parties. The court there said that the victor was entitled to “relief from redundant litigation of the identical question of the statute’s application to the taxpayer’s status.” This case indicates that at least some situations now controlled by the doctrine of collateral estoppel, i. e., applicability of a prior decision to the same fact situation re-arising in a subsequent taxable year, were previously considered to have been within the scope of the doctrine of res judicata. To this end.see also Griswold, Res Judicata in Federal Tax Cases; 46 Yale L.J. 1320. For this reason there can be no question that collateral estoppel applies between courts, as does res judicata, and not only to the court that made the initial decision. Collateral estoppel is inapplicable . when there has been a subsequent modification of the significant facts or a change or development in the controlling legal principles, statute or case law, which may have the effect of making the first determination obsolete or erroneous, at least for future purposes. Commissioner of Internal Revenue v. Sunnen, supra, 333 U.S. at page 599, 68 S.Ct. at page 720. To- this end, if, in the instant case," }, { "docid": "13955459", "title": "", "text": "is required. A case not tried on the merits can nonetheless be “adjudicated” within the meaning of the statute. See 124 Cong.Rec. 32250, 32413 (Sept. 28,1978) (statement of Rep. Edwards) (provided a petition and answer were filed in Tax Court, a subsequent default judgment bars bankruptcy courts from relitigating the debtor’s tax liability). Because the Bakers’ tax liability was contested before and adjudicated by a court of competent jurisdiction, § 505(a)(2)(A) applies. We also reject the Bakers’ argument that, even if § 505(a)(2)(A) applies, the statute should not preclude a court from granting equitable relief under Fed.R.Civ.P. 60(b). Section 505(a)(2)(A) is a jurisdictional statute that deprives bankruptcy courts of authority to decide a category of claims. Matter of Teal, 16 F.3d at 622. By enacting a statute that is jurisdictional in nature, “Congress did not leave bankruptcy courts the discretion to disregard tax court adjudications and concomitantly seize jurisdiction out of equitable concerns.” Id. Although the Bakers’ situation is unfortunate, they may not use Rule 60(b) to override the Bankruptcy Court’s jurisdictional limitations. B. The lower courts’ holdings are also supported by the doctrine of res judica-ta. Under this doctrine, a final judgment on the merits of an action precludes the parties from relitigating issues that were or could have been raised in that action. Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2427-28, 69 L.Ed.2d 103 (1981). In the tax context, once a taxpayer’s liability for a particular year is litigated, “a judgment on the merits is res judicata as to any subsequent proceeding involving the same claim and the same tax year.” Commissioner v. Sunnen, 333 U.S. 591, 598, 68 S.Ct. 715, 719-20, 92 L.Ed. 898 (1948). For res judicata purposes, an agreed or stipulated judgment is a judgment on the merits. See United States v. International Bldg. Co., 345 U.S. 502, 505-06, 73 S.Ct. 807, 808-09, 97 L.Ed. 1182, reh’g denied, 345 U.S. 978, 73 S.Ct. 1120, 97 L.Ed. 1392 (1953); Lawrence v. Steinford Holding B.V. (In re Dominelli), 820 F.2d 313, 316-17 (9th Cir.1987). The Bakers’ liability for the years in" }, { "docid": "19965017", "title": "", "text": "1683, 134 L.Ed.2d 784 (1996). The Goldens challenged the notice of deficiency in the Tax Court in 1990, and a stipulated decision was entered in that case in 1994. For purposes of res judicata, a stipulated decision “has the full effect of final judgment.” Blakely v. United States, 276 F.3d 853, 866 (6th Cir.2002); see also Baker, 74 F.3d at 910; United States v. Shanbaum, 10 F.3d 305, 313 (5th Cir.1994); accord United States v. Int’l Bldg. Co., 345 U.S. 502, 506, 73 S.Ct. 807, 97 L.Ed. 1182 (1953). It does not matter, as the Goldens argue, that the Tax Court in the 1994 case never actually decided this issue, because res judicata binds the parties “not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.” Sunnen, 333 U.S. at 597, 68 S.Ct. 715 (quoting Cromwell v. County of Sac, 94 U.S. 351, 352, 4 Otto 351, 24 L.Ed. 195 (1876)). The Goldens argue that they could not have challenged the timeliness of the assessment because it was not made until after the proceeding was concluded, but Mr. Golden conceded at the summary-judgment hearing that they “could have raised the three-year statute” in the 1990 proceeding. J.A. at 160 (Summ. J. Hr’g Tr. at 9). This argument is even more strange given Mr. Golden’s testimony at trial that he “raised the issue in the pleadings [in the 1990 proceeding], both the ten year statute for collection and the three year statute for assessment,” J.A. at 230 (Trial Tr. at 12), and the admissions in the Goldens’ briefs and at oral argument that they did in fact raise this issue in the previous Tax Court proceeding. Although the assessment had not yet been made, the Goldens had received a notice of deficiency, which served as statutory notice that the taxes would be assessed to their account, see I.R.C. § 6213(a), allegedly after the statute of limitations had expired. Upon receiving this notice, they could have, and admittedly" }, { "docid": "19965016", "title": "", "text": "Under the doctrine of res judicata, also known as claim preclusion, a party is precluded from bringing a claim when there exists (1) a final decision on the merits by a court of competent jurisdiction; (2) a subsequent action between the same parties or their ‘privies[’;] (3) an issue in the subsequent action which was litigated or should have been litigated in the prior action; and (4) an identity of the causes of action. United States v. Vasilakos, 508 F.3d 401, 406 (6th Cir.2007) (alteration in original) (quoting Saylor v. United States, 315 F.3d 664, 668 (6th Cir.2003)). In the tax con text, “if a claim of liability or non-liability relating to a particular tax year is litigated, a judgment on the merits is res judica-ta as to any subsequent proceeding involving the same claim and the same tax year.” Comm’r v. Sunnen, 333 U.S. 591, 598, 68 S.Ct. 715, 92 L.Ed. 898 (1948); see also Baker v. IRS (In re Baker), 74 F.3d 906, 910 (9th Cir.), cert. denied, 517 U.S. 1192, 116 S.Ct. 1683, 134 L.Ed.2d 784 (1996). The Goldens challenged the notice of deficiency in the Tax Court in 1990, and a stipulated decision was entered in that case in 1994. For purposes of res judicata, a stipulated decision “has the full effect of final judgment.” Blakely v. United States, 276 F.3d 853, 866 (6th Cir.2002); see also Baker, 74 F.3d at 910; United States v. Shanbaum, 10 F.3d 305, 313 (5th Cir.1994); accord United States v. Int’l Bldg. Co., 345 U.S. 502, 506, 73 S.Ct. 807, 97 L.Ed. 1182 (1953). It does not matter, as the Goldens argue, that the Tax Court in the 1994 case never actually decided this issue, because res judicata binds the parties “not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.” Sunnen, 333 U.S. at 597, 68 S.Ct. 715 (quoting Cromwell v. County of Sac, 94 U.S. 351, 352, 4 Otto 351, 24 L.Ed. 195 (1876))." }, { "docid": "19925843", "title": "", "text": "95; James v. Commissioner, 31 B.T.A. 712, 720. The rule is founded upon the necessity of according finality to court judgments. The parties, having had the opportunity to litigate their controversy, are conclusively bound by the compromise agreed upon. Their former cause of action is merged into the compromise judgment and is extinguished. The case of United States v. International Building Co., 345 U.S. 502, 506, is directly in point. That case involved a decision of the Tax Court entered pursuant to a stipulation of the parties. The court stated, “Certainly the judgments entered are res adjudicata of the tax claims for the years 1933, 1938, and 1939, whether or not the basis of the agreements on which they rest reached the merits.” A compromise settlement has also been held to bar the government, after settling its claim against a taxpayer by stipulation in the Tax Court, from collecting additional taxes. Lenny v. Williams, 143 F. Supp. 29. The plaintiffs, however, claim that they are equitably entitled to recover these taxes on the grounds that the stipulations were entered into under financial stress, which they say amounted to duress, and due to a mutual mistake of law. We do not believe either of these allegations warrant the setting aside of the settlement agreement. The fact that plaintiffs did not have sufficient funds immediately available to pay the entire tax in the event they lost their suit, and, therefore, entered into the settlement, does not now give them a right to claim that the settlement was entered into under duress. It is well settled that the pressure of financial difficulties is not sufficient to constitute legal duress. Cf. Burnet v. Chicago Railway Equipment Co., 282 U.S. 295; Shaw & Truesdell Co. v. United States, 1 F. Supp. 834. This is especially so where no showing is made that the other party took advantage of opponent’s financial condition to assert unreasonable demands. There is no showing here that the defendant’s claim of $111,570, which was settled for $47,714.16, was not asserted in good faith. Nor do we think that the fact that" }, { "docid": "4223524", "title": "", "text": "of the Tax Court entered pursuant to a stipulation of the parties. The Court held: “Certainly the judgments entered are res adjudícala of the tax claims for the years 1933, 1938, and 1939, whether or not the basis of the agreements on which they rest reached the merits.” See also: American Woolen Mills v. U. S., 18 F.Supp. 783, 85 Ct.Cl. 101, affirmed 21 F.Supp. 125, 85 Ct.Cl. 101, and Id., 1021, 85 Ct.Cl. 101, Continental Petroleum Co. v. U. S., 10 Cir., 87 F.2d 91. The decision of the Tax Court, being res ad judicata of the tax claims for the years in question, the Commissioner was without right or authority to collect any additional income taxes for the year 1943. The warrant of distraint issued for the collection of the 1943 taxes was void, as it was not based on a valid assessment. Section 272(a) (1) of the Revenue Act of 1939, Title 26 U.S.C.A. prohibits the .Commissioner from collecting any tax while a case is pending in the Tax Court and before its decision has become final. The Act expressly provides that the Court may enjoin the collection of a tax pending such proceeding. Section 272(b) prohibits the Commissioner from assessing or collecting any part of a deficiency disallowed by final decision of the Tax Court. The taxes which the Commissioner is now attempting to collect were, in effect, disallowed .by the final decision of the Tax Court and come directly within the prohibitions of § 272(a) (1) and § 272(b) which authorize the Court to grant an injunction. In Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 260, 263, 76 L.Ed. .422, the Supreme Court said: “* * * And this court likewise recognizes the rule that, in cases where complainant shows that in addition to the'illegality of an exaction in the guise of a tax there exists special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence, a suit may be maintained to enjoin the collector. * * *” See: Midwest Haulers, Inc. v. Brady, 6" }, { "docid": "21602519", "title": "", "text": "(8th Cir.1994). Res Judicata When a person dies and estate tax is not paid by the estate, a Hen attaches to the decedent’s gross estate. 26 U.S.C. § 6324(a)(1). To the extent the estate tax remains unpaid, the recipient of property included in the decedent’s gross estate becomes personaUy Hable for the tax, up to the value of the property received. 26 U.S.C. § 6324(a)(2). Gabriel first argues that the decision entered by the tax court in Estate of Baptiste pursuant to a stipulated agreement, regarding the deficiency in estate tax, carried no res judicata effect for purposes of imposing personal, transferee HabiHty on him under § 6324(a)(2). We disagree. Res judicata promotes judicial economy by preventing repetitious suits involving the same cause of action. The general rule of res judicata provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties and their privies are thereafter bound not only as to every matter presented to the court but also as to every matter that might have been brought before the court. Headley v. Bacon, 828 F.2d 1272, 1274 (8th Cir.1987). It is well -established that the doctrine of res judicata applies to the field of federal taxation. United States v. International Bldg. Co., 345 U.S. 502, 73 S.Ct. 807, 97 L.Ed. 1182 (1953). The doctrine of res judicata is applicable when an identical issue is contested in a separate proceeding arising out of a single cause of action. Krueger v. Comm’r, 48 T.C. 824, 828, 1967 WL 990 (1967) CKrueger). In the present case, the requirement that the claims raised in the subsequent litigation be in substance the same as those in the prior litigation has been satisfied. The cause of action giving rise to the present case is the transferor and Gabriel’s respective obligation to pay the estate tax imposed on the transfer of decedent’s estate. In Estate of Baptiste, the tax court determined that $62,378.48 was the amount of estate tax due on the transfer of decedent’s estate pursuant to chapter 11 of the Internal" }, { "docid": "4730471", "title": "", "text": "that collateral estoppel may be a defense to a prosecution although double jeopardy is inapplicable because there is not an identity of offenses, Sealfon v. United States, 1948, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180, and is therefore in one sense broader than the application of res judicata as a complete merger or bar, or the constitutional counterpart thereof, double jeopardy. However, in another sense collateral estoppel is narrower — for the latter doctrine can only foreclose the litigation of issues which have actually been litigated and determined in the previous proceeding. Restatement, Judgments § 68 (1942). It recently has been held that an action dismissed with prejudice by stipulation of the parties would be a bar to the plaintiff’s reassertion of the same cause of action, but that collateral estoppel could have no application because the case never was tried and therefore there was not such a finding of fact as would prevent the parties from questioning that finding thereafter. Lawlor v. National Screen Service Corp., 3 Cir., 1954, 211 F.2d 934. Further, the Supreme’ Court has held in a case involving a con sent judgment rendered by the tax court, that such a judgment was only an acceptance by the court of an agreement between the parties to settle their controversy and since there had been no hearing, no stipulations of fact, no briefs filed, no oral argument, and no showing that the issues were determined by the prior proceeding, the judgment could have no effect as collateral estoppel. United States v. International Building Co., 1953, 345 U.S. 502, 73 S.Ct. 807, 97 L.Ed. 1182. It is difficult to see, therefore, how the doctrine of collateral estoppel could be applied to a compromise. What facts were determined by the compromise which was accepted by the Commissioner — that the defendants were innocent of the charge against them or that they were guilty? Generally, it may be stated that a compromise is not a determination either of a defendant’s guilt or his innocence. For a compromise by its inherent meaning is a blending of the extremes. Presumably," }, { "docid": "7153428", "title": "", "text": "contends that it was error to apply the doctrine of collateral estoppel because estoppel operates only upon matters and questions actually litigated. Appellant claims that his guilty pleas in the criminal case, were like a consent decree in a civil case, and not an adjudication on the merits of the fraud issue. While Gray concedes that there are federal cases which would permit the application of collateral estoppel in this instance, he argues that such cases are distinguishable, and not applicable to his situation. He further contends that such cases are not binding upon this court, that they are in conflict with “the weight of state authorities on the issue,” and that an application of collateral estoppel here would conflict with the holding of the Supreme Court in United States v. International Building Co., 345 U.S. 502, 73 S.Ct. 807, 97 L.Ed. 1182 (1953). In International Building, deficiencies were assessed against the corporate taxpayer for the years 1933, 1938, and 1939, be cause of a determination that taxpayer had used an improper basis of depreciation for certain property. By a joint stipulation, the deficiencies were abated and the Tax Court entered decisions that there were no deficiencies for those years. In 1948, the Commissioner assessed deficiencies in taxes for the years 1943, 1944, and 1945, again challenging the basis for depreciation used by taxpayer. After paying the deficiencies and suing for refund, the taxpayer claimed that the prior decisions regarding taxable years 1933, 1938 and 1939 were res judicata as to the question of the proper basis for depreciation. In determining that the prior decision was not binding, the court found that it was not clear that the merits of the depreciation dispute had been determined in the first case. The International Building case is clearly distinguishable from Gray’s situation. The record establishes that the District Court fully examined appellant with respect to his understanding of the charges contained in the indictment, and Gray affirmatively stated that he had indeed filed false tax returns, and that he had done so, with the intent to evade the payment of taxes. The" }, { "docid": "22051173", "title": "", "text": "judgment entered by confession, consent, or default, none of the issues is actually litigated. Therefore, the rule of this Section [describing issue preclusion’s domain] does not apply with respect to any issue in a subsequent action.” Id., comment e, at 257. This Court’s decision in United States v. International Building Co., 345 U. S. 502 (1953), is illustrative. In 1942, the Commissioner of Internal Revenue assessed deficiencies against a taxpayer for the taxable years 1983,1938, and 1939, alleging that the taxpayer had claimed an excessive basis for depreciation. Id., at 503. After the taxpayer filed for bankruptcy, however, the Commissioner and the taxpayer filed stipulations in the pending Tax Court proceedings stating that there was no deficiency for the taxable years in question, and the Tax Court entered a formal decision to that effect. Id., at 503-504. In 1948, the Commissioner assessed deficiencies for the years 1943,1944, and 1945, and the taxpayer defended on the ground that the earlier Tax Court decision was preclusive on the issue of the correct basis for depreciation. We disagreed, holding that the Tax Court decision, entered pursuant to the parties’ stipulations, did not accomplish an “estoppel by judgment,” i. e., it had no issue-preclusive effect: “We conclude that the decisions entered by the Tax Court for the years 1933, 1938, and 1939 were only a proforma acceptance by the Tax Court of an agreement between the parties to settle their controversy for reasons undisclosed.... Perhaps, as the Court of Appeals inferred, the parties did agree on the basis for depreciation. Perhaps the settlement was made for a different reason, for some exigency arising out of the bankruptcy proceeding. As the case reaches us, we are unable to tell whether the agreement of the parties was based on the merits or on some collateral consideration. Certainly the judgments entered are res judicata of the tax claims for the years 1933,1938, and 1939, whether or not the basis of the agreements on which they rest reached the merits.... Estoppel by judgment includes matters in a seeond proceeding which were actually presented and determined in an earlier" }, { "docid": "4223523", "title": "", "text": "included in the stipulation, or presented to the Tax Court, if the Commissioner desired to assert them. By his failure to do so, the Tax Court entered a decision for the stipulated amounts, which the ■ Commissioner now claims, do not include all of the income taxes for which the taxpayer was liable for 1943. It is too late for either party to change the stipulation, or the (decision of the Tax Court, or to repudiate the settlement, after it has been fully executed. The income taxes now claimed did not survive the stipulation and the decision of the Tax Court thereon. The 'decision of the Tax Court ought to have some finality. Where the Tax Court decides a matter on its merits or upon stipulation of the parties, such decision is res adjudicata of the tax claims for the taxable years in question. The Supreme Court so held in the case of United States v. International Building Co., 345 U.S. 502, 506, 73 S.Ct. 807, 809, 97 L.Ed. 1182. This case involved a decision of the Tax Court entered pursuant to a stipulation of the parties. The Court held: “Certainly the judgments entered are res adjudícala of the tax claims for the years 1933, 1938, and 1939, whether or not the basis of the agreements on which they rest reached the merits.” See also: American Woolen Mills v. U. S., 18 F.Supp. 783, 85 Ct.Cl. 101, affirmed 21 F.Supp. 125, 85 Ct.Cl. 101, and Id., 1021, 85 Ct.Cl. 101, Continental Petroleum Co. v. U. S., 10 Cir., 87 F.2d 91. The decision of the Tax Court, being res ad judicata of the tax claims for the years in question, the Commissioner was without right or authority to collect any additional income taxes for the year 1943. The warrant of distraint issued for the collection of the 1943 taxes was void, as it was not based on a valid assessment. Section 272(a) (1) of the Revenue Act of 1939, Title 26 U.S.C.A. prohibits the .Commissioner from collecting any tax while a case is pending in the Tax Court and before" }, { "docid": "22910527", "title": "", "text": "bar. The Havre branch of the 1942 settlement agreement and the Alexandria branch of the Court of Claims decision were not separate corporate entities, and the income earned by taxpayer through those offices was its own. Although the Alexandria branch was no longer in existence during taxpayer’s 1950 fiscal year, the government could reasonably have conceded that the intent of the agreement would serve to allow taxpayer to deduct the decline in dollar value of the Nile Ginning current account to the extent that it represented the Alexandria branch’s unremitted earnings upon which taxpayer had paid United States income tax. The government could have conceded this proposition without also conceding that a dividend received from a subsidiary should be accorded the same tax treatment. Insofar as there remains any ambiguity, since both the agreement and the result in the Court of Claims represent exceptions to the general rule that a mere decline in value does not constitute a deductible loss, we construe them narrowly. Even assuming that the government’s concession in Anderson, Clayton, supra, were on point, we would not estop the Commissioner from seeking a result taxpayer concedes would otherwise be the correct treatment of the unrealized foreign exchange losses. Collateral estoppel applies only to an issue that was actually litigated and determined in a prior action, not to an issue that might have been litigated. This was not a case, moreover, in which the issue with respect to which taxpayer seeks to estop the government is necessarily implied by the prior judicial decision even though not expressly decided. Once before the Court of Claims, the government conceded^ the deductibility of some foreign exchange losses but denied it as to others. The court ordered judgment for taxpayer to the extent of the government’s concession and-judgment for the government on the only point it contested. We start from the proposition that strong policy considerations favor confining narrowly the scope of collateral estoppel in tax cases. See Griswold, Res Judicata in Federal Tax Cases, 46 Yale L.J. 1320 (1937). The most persuasive policy consideration in the present context is that perpetuation" }, { "docid": "19925842", "title": "", "text": "partnership entered into in 1943 by plaintiffs and four of their five children could not be recognized for Federal tax purposes. The - plaintiffs now ask us to decide that the Commissioner was in error, that the partnership was bona ■fide and should have been recognized for all purposes, and they further ask that we recommend to Congress that it disregard the settlement, and refund to them the amount they paid pursuant to it. Clearly the plaintiffs are not legally entitled to recover because a judgment rendered on the merits constitutes an absolute bar to a subsequent action. Southern Pacific Railroad Co. v. United States, 168 U.S. 1; Cromwell v. County of Sac, 94 U.S. 351; and numerous other cases. The fact that the judgment was entered by consent of the parties rather than upon a judicial determination of the controversy is immaterial; it is nonetheless a bar to a subsequent suit on the same cause of action. Lawlor v. National Screen Service Corp., 349 U.S. 322, 327; United States v. Parker, 120 U.S. 89, 95; James v. Commissioner, 31 B.T.A. 712, 720. The rule is founded upon the necessity of according finality to court judgments. The parties, having had the opportunity to litigate their controversy, are conclusively bound by the compromise agreed upon. Their former cause of action is merged into the compromise judgment and is extinguished. The case of United States v. International Building Co., 345 U.S. 502, 506, is directly in point. That case involved a decision of the Tax Court entered pursuant to a stipulation of the parties. The court stated, “Certainly the judgments entered are res adjudicata of the tax claims for the years 1933, 1938, and 1939, whether or not the basis of the agreements on which they rest reached the merits.” A compromise settlement has also been held to bar the government, after settling its claim against a taxpayer by stipulation in the Tax Court, from collecting additional taxes. Lenny v. Williams, 143 F. Supp. 29. The plaintiffs, however, claim that they are equitably entitled to recover these taxes on the grounds that" } ]

[ { "docid": "7649240", "title": "", "text": "26 U.S.C. § 626(d) to notify the Secretary of Labor of his intent to sue at least 60 days prior to filing suit and within 180 days of the alleged discriminatory event. The district court granted Western Union’s motion and dismissed the complaint with prejudice. On this appeal Templeton contends that the court erred in dismissing his action. He asserts that the 180-day limitations period should be equitably tolled because Western Union’s failure to meet its statutory duty to post information prepared by the Secretary of Labor to inform employees of their ADEA rights caused him to be unaware of the necessity of asserting his claim in that period. With regard to the 60-day period, he contends that he could not delay filing his suit for 60 days after filing his notice of intent to sue without being barred by the two-year statute of limitations on ADEA suits set forth in 29 U.S.C. §§ 255, 626(e). We affirm. Section 7(d)(1) of the ADEA, 29 U.S.C. § 626(d)(1), limits the period in which an aggrieved employee may initiate an action under the ADEA. It provides in pertinent part: No civil action may be commenced by an individual under this section until the individual has given the Secretary [of Labor] not less than sixty days’ notice of an intent to file such action. Such notice shall be filed— (1) Within one hundred and eighty days after the alleged unlawful practice occurred . The 180-day notice requirement constitutes a prerequisite to an action based upon the ADEA. Newcomer v. IBM, 598 F.2d 968 (5th Cir. 1979); Quina v. Owens-Corning Fiberglas Corp., 575 F.2d 1115, 1118 (5th Cir. 1978); Thomas v. E. I. DuPont de Nemours & Co., 574 F.2d 1324, 1329-30 (5th Cir. 1978); Edwards v. Kaiser Aluminum & Chem. Sales, Inc., 515 F.2d 1195, 1199 (5th Cir. 1975). In several prior cases this court pretermitted the question of whether the notice requirements of section 626(d) could be equitably modified, indicating only that such modification might be justified under some circumstances. Quina v. Owens-Coming Fiberglas Corp., 575 F.2d 1115 (5th Cir. 1978); Thomas" } ]

[ { "docid": "5665678", "title": "", "text": "after the alleged act of unlawful discrimination occurred. Plaintiff did not file a charge of sex discrimination with the EEOC prior to the institution of this suit. Plaintiff alleges, however, that in May 1980, she attempted to file this charge but the Houston office of the EEOC refused to allow her to file it. Plaintiff sought leave to amend her complaint in order to add two claims of unlawful retaliation. These involve allegations that: (1) BISD denied plaintiff two physical education teaching positions in the summer of 1980 and lowered her salary in August 1980, and (2) BISD attempted to deny plaintiff renewal of her teacher/coach contract for the academic year 1982-83. Plaintiff filed the first charge of retaliation with the EEOC in November 1980 and the second in March 1981. Both of these charges were filed after institution of this suit (based only on sex discrimination) on July 14,1980. In May 1981, plaintiff received her notices of right to sue based on her charges of retaliation. Plaintiff wholly failed to file a charge of sex discrimination with the EEOC prior to filing the instant suit. 42 U.S.C. § 2000e-5(e) requires charges to be filed within 180 days of the alleged unlawful employment practice. Filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit; the 180-day filing requirement is in the nature of a statute of limitations and is subject to waiver, estoppel, and equitable tolling. Zipes v. TWA, Inc., 455 U.S. 385, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982); Coke v. General Adjustment Bureau, Inc., 640 F.2d 584 (5th Cir.1981) (en banc). This Circuit, however, has held that the 180-day provi sion is a precondition to filing suit in district court. Coke, 640 F.2d at 595. Because plaintiff failed to satisfy the condition, the grant of summary judgment to BISD was appropriate. Even assuming arguendo that this Court might, due to the particular circumstances (plaintiff claims she was not allowed to file the charge with the EEOC), waive the filing of the charge as a prerequisite to suit, plaintiff nevertheless did not" }, { "docid": "15376820", "title": "", "text": "his suit. Discussion The filing requirement of the ADEA was to a large extent modeled after the filing provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1988). See EEOC v. Commercial Office Products Co., 486 U.S. 107, 123-24, 108 S.Ct. 1666, 1675-76, 100 L.Ed.2d 96 (1988); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 395 n. 11, 102 S.Ct. 1127, 1133 n. 11, 71 L.Ed.2d 234 (1982). It contains two provisions that function like statutes of limitations. Section 7(e)(1) of the ADEA, 29 U.S.C. § 626(e)(1), incorporating section 6 of the Portal-to-Portal Act of 1947, 29 U.S.C. § 255 (1988), establishes a limitations period for filing suit of two years after the cause of action accrues or three years in the case of a willful violation. In addition, section 7(d) of the ADEA sets the time limits for filing an administrative charge with the EEOC—180 days after the alleged unlawful practice occurred, or 300 days after such date in deferral states like New York. See Miller v. International Telephone and Telegraph Corp., 755 F.2d 20, 23-24 (2d Cir.), cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 122 (1985). Section 7(d) also requires a plaintiff to wait 60 days after filing a charge with the EEOC before bringing a suit in the district court. As originally enacted, section 7(d) provided that a suit could not be commenced “by any individual under this section until the individual has given” at least 60 days notice to the Secretary of Labor, who was then charged with enforcement of the Act. Pub.L. No. 90-202, 81 Stat. 602, 605 (1967) (emphasis added). In 1978, Congress amended section 7(d) to eliminate the requirement that “the individual” bringing suit must have given the administrative notice and provided instead that suit could not be brought until 60 days after “a charge alleging unlawful discrimination has been filed with the Secretary.” Pub.L. No. 95-256, § 4(a), 92 Stat. 189, 190 (1978) (emphasis added). That same year the Secretary’s ADEA responsibilities were transferred to the EEOC. Reorg. Plan No. 1 of" }, { "docid": "6471053", "title": "", "text": "forbids employment discrimination against employees aged forty and older. 29 U.S.C. § 631(a); Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 448 (8th Cir.1993). It provides that it is unlawful for an employer to “fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). a. Administrative prerequisites to suit under the ADEA The ADEA requires that within 180 days of the alleged unlawful conduct by an employer, the employee file a charge outlining the unlawful conduct with the Equal Employment Opportunity Commission (EEOC). 29 U.S.C. § 626(d) (1982). The EEOC then notifies the employer and seeks “to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion.” Id. If the parties have not compromised after 60 days, the employee can file a civil suit under the ADEA. Id. See also Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978) (notice must be given of the intention to sue so that the EEOC or Secretary of Labor can attempt to eliminate the alleged unlawful practice through informal methods); Brooks v. Monroe Sys. For Business, Inc., 873 F.2d 202, 205 (8th Cir.) (“The ADEA states that a civil action may not be commenced until sixty days after a charge alleging unlawful discrimination has been filed with the EEOC,” citing 29 U.S.C. § 626(d)), cert. denied, 493 U.S. 853, 110 S.Ct. 154, 107 L.Ed.2d 112 (1989). Filing with the EEOC is a condition precedent to later filing a suit under the ADEA. Boge v. Ringland-Johnson-Crowley Co., 976 F.2d 448, 450-51 (8th Cir.1992) (filing of charge with EEOC is required before employee may initiate a civil suit under the ADEA); Heideman v. PFL, Inc., 904 F.2d 1262, 1265 (8th Cir.1990) (filing with EEOC is a “prerequisite” to suit under the ADEA), cert. denied, 498 U.S. 1026, 111 S.Ct. 676, 112 L.Ed.2d 668 (1991); Walker v. St. Anthony’s Medical Ctr., 881 F.2d 554, 556 (8th Cir.1989) (timely filing of" }, { "docid": "14471581", "title": "", "text": "to address the merits of plaintiff’s claim. The plaintiff, Charles Bassett, was discharged from employment on August 28, 1981, when he was fifty-six years of age. Mr. Bassett met with his present counsel in September of 1981, but pursued no further legal action until August 24, 1982 when he filed a charge of discrimination with the EEOC, 361 days after his termination. Thereafter, plaintiff commenced this action on January 4, 1983. The filing requirement in the ADEA provides that: No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Commission. Such a charge shall be filed— (1) within 180 days after the alleged unlawful practice occurred; or (2) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier. 29 U.S.C. § 626(d). The defendants agree that Ohio is a deferral state, and that the 300 day period is applicable. Nevertheless, defendants insist that plaintiff’s age discrimination claim must be dismissed because no charge was filed with the EEOC until 361 days after the alleged unlawful practice occurred. Plaintiff resists dismissal by arguing that the filing period is in the nature of a statute of limitations and is subject to equitable tolling. Furthermore, plaintiff contends that he was mentally incompetent for 129 days during the interim between his discharge and his filing with the EEOC, and that the filing period should have tolled for 129 days. If plaintiff’s theory of equitable tolling in this context is correct, this would render the EEOC charge timely filed. The Sixth Circuit held, in Wright v. State of Tennessee, 628 F.2d 949 (6th Cir.1980) (en banc), that the filing requirements embodied in § 626(d) of the ADEA are not jurisdictional prerequisites. Being more in the nature, of a -statute of limitations, these filing periods are subject to equitable tolling. This view is consistent with views of other Circuits" }, { "docid": "1214687", "title": "", "text": "in Employment Act of 1967 and the 1978 amendments. One of the bases of the lawsuit is the unlawful termination of Mr. Scaramuzzo in February, 1979, on account of his age. This letter constitutes the only charge filed with the Department of Labor by Scaramuzzo. Because this notice fails to specifically allege claims of unlawful demotion or retaliation, and because more than 180 days have passed since the demotion and alleged retaliation, Glenmore contends that these claims are time barred by the 180-day limitation of section 7(d) of the ADEA. Scaramuzzo, on the other hand, argues that Glen-more’s three discrete - actions were sufficiently related to one another such that Scaramuzzo’s claims of retaliation and demotion must be considered to be encompassed in the Notice of Intent to Sue mailed on March 23. Numerous courts have recognized the similarity between the ADEA and Title VII, and the comparability of their filing provisions often has been acknowledged in determining the timeliness of a claim brought pursuant to either Act. See, e. g., Coke v. General Adjustment Bureau, Inc., 616 F.2d 785 (5th Cir. 1980); Templeton v. Western Union Telegraph Co., 607 F.2d 89 (5th Cir. 1979); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979); Laugesen v. Anaconda Co., 510 F.2d 307 (6th Cir. 1975); Locascio v. Teletype Corp., 74 F.R.D. 108 (N.D.Ill.1977). It is well settled in this Circuit that a claim based upon a violation of Title VII properly may encompass any acts of discrimination similar to, or reasonably related to the allegations made in the charge initially to the EEOC. Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164, 167 (7th Cir.) (en banc), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976); Plummer v. Chicago Journeyman Plumbers, Etc., 452 F.Supp. 1127, 1141 (N.D.Ill.1978); Garcia v. Rush-Presbyterian-St. Luke’s Medical Center, 80 F.R.D. 254, 260 (N.D.Ill.1978); McCray v. Standard Oil Co. (Indiana), 76 F.R.D. 490, 497 (N.D. Ill.1977). In Jenkins, the Court articulated a standard for determining the scope of a Title VII complaint: The correct rule to follow in construing EEOC charges" }, { "docid": "18375871", "title": "", "text": "627. The court finds that, although in some instances the 180-day limitations period is subject to tolling, the equities in this case are not substantial enough to justify plaintiff’s failure to comply with the requisite filing period. Section 7(d)(1) of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 626(d)(1), provides a 180-day time limitation in which an aggrieved party may initiate an action under the ADEA. The Act provides in part: No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Secretary. Such a charge shall be filed (1) within 180 days after the alleged unlawful practice occurred____ Timely filing of a charge within 180 days is a requirement which “constitutes a prerequisite to an action based upon the ADEA.” Templeton v. Western Union Telegraph Co., 607 F.2d 89, 91 (5th Cir.1979). See also Newcomer v. IBM, 598 F.2d 968 (5th Cir.1979); Quina v. Owens-Corning Fiberglas Corp., 575 F.2d 1115 (5th Cir.1978); Thomas v. E.I. DuPont de Nemours & Co., 574 F.2d 1324 (5th Cir.1978); Charlier v. S.C. Johnson & Son, Inc., 556 F.2d 761 (5th Cir.1977); Edwards v. Kaiser Aluminum & Chem. Sales, Inc., 515 F.2d 1195 (5th Cir.1975). This prerequisite is not, however, of a jurisdictional nature. The 180-day period is “more in the nature of a statute of limitations — which is subject to equitable tolling.” Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 589 (5th Cir.1981) (en banc). The Coke decision does not, however, mandate equitable tolling of this limitation period in all instances. In Coke the court found that equitable tolling would be warranted where, for example, the defendant through misleading conduct induces a plaintiff to delay filing suit until the statute of limitations period has run. See also Woodard v. Western Union Telegraph Co., 650 F.2d 592, 595 (5th Cir.1981); Phillips v. Southern Bell Tel. & Tel. Co., 650 F.2d 655, 658 (5th Cir.1981). There has been no such conduct on the part of defendant Alabama By-Products Corporation in this instance. Despite the authority that" }, { "docid": "19678785", "title": "", "text": "intended to cite 29 U.S.C. § 626(d) instead because this provision sets forth administrative filing requirements that are relevant to this case. See Vinson v. Ford Motor Co., 806 F.2d 686, 688 (6th Cir.1986) (citing 29 U.S.C. § 626(d) for the proposition that “[i]t is well settled that the filing of a charge with the EEOC is a jurisdictional prerequisite to the filing of a civil action under ADEA.”) Section 626(d) provides that [n]o civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the [EEOC]. Such a charge shall be filed— (1) within 180 days after the alleged unlawful practice occurred; or (2) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier. Upon receiving such a charge, the Commission shall promptly notify all persons named in such charge as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion. Two principal considerations lead us to conclude that this subsection does not describe a limitation on federal subject matter jurisdiction. First, nothing in this subsection “clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional” because it “does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.” See Arbaugh, 546 U.S. at 515, 126 S.Ct. 1235 (citation and internal quotation marks omitted). The term “jurisdiction,” for example, never appears in this provision’s text or title. We recognize that § 626(d) states that “no civil action may be commenced” until an EEOC charge has been filed. Id. But this language alone does not suffice to show that Congress intended for the requirement to be jurisdictional in nature. See Arbaugh, 546 U.S. at 510, 126 S.Ct. 1235 (noting that “in recent decisions, we have clarified that time prescriptions, however emphatic, are" }, { "docid": "15425336", "title": "", "text": "a period of 27 weeks. You will also receive out-placement assistance during that time period. 4. Effective March 29,1985, your employment will be terminated due to job elimination. If anything becomes available for your consideration, I will contact you at once. Should you have questions, please call me collect. Very Truly Yours, /s/ Brian J. Warshaw Brian J. Warshaw Manager Selection & Placement Cocke was discharged on March 29, 1985. On June 21, 1985 Cocke filed his charge alleging discrimination with the EEOC. After receiving a right to sue letter, Cocke filed his complaint in the district court on September 17, 1985. The statutory filing period requires in pertinent part: [d] No civil action may be commenced by an individual under this section until 60 days after a charge alleging un lawful discrimination has been filed with the Equal Employment Opportunity Commission. Such a charge shall be filed— (1) within 180 days after the alleged unlawful practice occurred____ Upon receiving such a charge, the Commission shall promptly notify all persons named in such charge as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion. 29 U.S.C.A. § 626(d)(1). . A final decision to terminate the employee, rather than actual termination, constitutes the “alleged unlawful practice” that triggers the filing period. See Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981); Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). Thus, the 180-day period is counted from the date the employee receives notice of termination. It is settled law, however, that the charging period of the ADEA is subject to equitable modification. Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 595 (5th Cir. March 1981) (en banc). See Zipes v. Transworld Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982). The standard for equitable modification in this case is governed by Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir.1975). Equitable modification suspends a limitations period “until the facts" }, { "docid": "1450182", "title": "", "text": "not belong to a union. Another attempt at contacting the Labor Department was also unsuccessful. Following that, plaintiff made no other efforts to file an age discrimination claim until he contacted an attorney nearly a year later, after an unsuccessful search for a new job. On January 12, 1982, McClinton filed an age discrimination charge with the EEOC. On March 19, 1982, after the EEOC refused to act on the charge because he had failed to comply with the ADEA requirement that charges be filed within 180 days of the alleged discrimination, plaintiff commenced the present action under the ADEA. The district court held that the equities in the case did not justify a tolling of the 180-day notification requirement, and granted summary judgment to the defendants. McClinton v. Alabama By-Products Corp., 574 F.Supp. 43 (N.D.Ala.1983). Plaintiff appealed. Section 7(d)(1) of the ADEA, 29 U.S.C. § 626(d)(1), limits the period in which an aggrieved employee may initiate an action under the ADEA. It provides, in part: No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the [EEOC]. Such a charge shall be filed (1) within 180 days after the alleged unlawful practice occurred. This 180-day notification requirement is a prerequisite to an action based on the ADEA, Templeton v. Western Union Telegraph Co., 607 F.2d 89, 91 (5th Cir.1979), and is intended to promote the speedy, informal, non-judicial resolution of discrimination claims, and to preserve evidence and records relating to the alleged discriminatory action. Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195, 1198-99 (5th Cir.1975). It is now established that this notification requirement is not a jurisdictional prerequisite that deprives a court of subject matter jurisdiction, but a requirement more in the nature of a statute of limitations that is subject to equitable tolling. Coke v. General Adjustment Bureau, 640 F.2d 584, 595 (5th Cir.1981) (en banc). Whether to toll this statutory period is determined on a case-by-case basis, depending on the equities of the situation. In this case, appellant asserts" }, { "docid": "1675320", "title": "", "text": "magistrate judge then held a hearing on the issue of damages and accepted post-trial memoranda on the issues of damages and timeliness. The magistrate judge found that the period for filing a claim with the EEOC had expired before Rhodes filed his charge with the EEOC and the period could not be extended under equitable tolling or equitable estop-pel. The magistrate judge dismissed Rhodes’ suit with prejudice. Rhodes appeals, contending that his suit is not time-barred. The sufficiency of the evidence supporting the jury verdict is not before us. Guiberson Oil did not raise this issue in its brief or at oral argument. II. PRE-CONDITIONS TO AN ADEA SUIT. Employees cannot commence a civil action under the ADEA until 60 days after they have filed a charge with the EEOC alleging unlawful discharge. 29 U.S.C. § 626(d) (1988). ADEA required that Rhodes file such a charge within 180 days of the alleged discriminatory act. Id. at § 626(d)(1). Rhodes was not entitled to the 300-day filing period applicable to plaintiffs in deferral states. Louisiana has no state agency for age discrimination complaints and is therefore not a deferral state. See Id. §§ 633(b), 626(d)(2); La.Rev. Stat.Ann. §§ 23:971-76 (West 1985); see generally Blumberg v. HCA Management, Co., 848 F.2d 642, 646 (5th Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 789, 102 L.Ed.2d 781 (1989); Mennor v. The Fort Hood Nat’l Bank, 829 F.2d 553, 554-56 (5th Cir.1987). The statute provides that the 180-day filing period begins when the employee receives notice of discharge. See generally Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981) (per curiam); Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). According to this rule, the filing period for Rhodes began October 15, 1986, the date he received notice of his termination, and ended fifteen days before he filed his complaint with the EEOC. III. EQUITABLE TOLLING AND EQUITABLE ESTOPPEL. Even though Rhodes did not file his complaint with the EEOC within 180 days of the notice of his termination, his federal suit is not" }, { "docid": "18375870", "title": "", "text": "and was told that they could not help him because he did not be long to a union. McClinton states that he was unsuccessful at another attempt to contact the Labor Department. Plaintiff did not make any other attempts to file an age discrimination claim. McClinton claims that during this time he attempted to secure new employment, but after he was not successful he contacted an attorney. On January 12, 1982, nearly one year after his termination, McClinton filed an age discrimination charge with the Equal Employment Opportunity Commission (EEOC). Plaintiff was informed on January 20, 1982, that the EEOC would not proceed further with his charge because he had failed to comply with the ADEA requirement that charges be filed within 180 days of his discharge. Plaintiff commenced this present action on March 19, 1982. In his brief, plaintiff asserts that the 180-day limitations period should be equitably tolled because of Alabama By-Products’ failure to meet its statutory duty to post information concerning the ADEA, in conformity with ADEA Section 8, 29 U.S.C. § 627. The court finds that, although in some instances the 180-day limitations period is subject to tolling, the equities in this case are not substantial enough to justify plaintiff’s failure to comply with the requisite filing period. Section 7(d)(1) of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 626(d)(1), provides a 180-day time limitation in which an aggrieved party may initiate an action under the ADEA. The Act provides in part: No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Secretary. Such a charge shall be filed (1) within 180 days after the alleged unlawful practice occurred____ Timely filing of a charge within 180 days is a requirement which “constitutes a prerequisite to an action based upon the ADEA.” Templeton v. Western Union Telegraph Co., 607 F.2d 89, 91 (5th Cir.1979). See also Newcomer v. IBM, 598 F.2d 968 (5th Cir.1979); Quina v. Owens-Corning Fiberglas Corp., 575 F.2d 1115 (5th Cir.1978); Thomas v. E.I. DuPont de" }, { "docid": "10520968", "title": "", "text": "to that Act. Consistent with its investigative responsibilities, the OFCCP sent defendant an inquiry letter on March 4, 1988, concerning the extent of Monon’s federal contracts. Although OFCCP’s inquiry letter called for a response within 14 days, Monon failed to answer the inquiry until June 8, 1988, exactly one day after Wheeldon’s statute of limitations under the ADEA had run. II. ANALYSIS A. Failure to File a Timely Age Discrimination Complaint with the EEOC The ADEA states that a charge filed pursuant to the Act must be filed “within 180 days after the alleged unlawful practice occurred.” 29 U.S.C. § 626(d). Ordinarily, the charge-filing period accrues when the employer notifies the employee of termination. Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980); Stark v. Dynascan Corp., 902 F.2d 549, 551 (7th Cir.1990); Mull v. ARCO Durethene Plastics, Inc., 784 F.2d 284, 288 (7th Cir.1986). In Wheeldon’s case the charge-filing period accrued on December 10, 1987, the date he was notified of termination, and ended on June 7, 1988, 180 days later. Wheeldon filed his complaint in federal district court on July 19, 1989, and his EEOC claim was “file-marked” September 6, 1988. It is uncontested that plaintiff filed both his court and his EEOC complaints after the 180-day limitations period had run. Although plaintiff concedes that he did not file his charge with the EEOC during the statutory period, he contends that his filing of a timely discrimination claim under Section 402 of the Veterans Assistance Act (38 U.S.C. § 2012) with OFCCP constitutes a valid claim of age-based discrimination pursuant to the ADEA. Because his OFCCP filing did not sufficiently allege age-based discrimination, we disagree. In accordance with the ADEA, “[n]o civil action may be commenced * * * until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission.” 29 U.S.C. § 626(d). The requirement that plaintiff file a claim with the EEOC before initiating a federal lawsuit serves two important purposes: 1) to provide the EEOC with an opportunity to conciliate the employee’s" }, { "docid": "1450183", "title": "", "text": "under this section until 60 days after a charge alleging unlawful discrimination has been filed with the [EEOC]. Such a charge shall be filed (1) within 180 days after the alleged unlawful practice occurred. This 180-day notification requirement is a prerequisite to an action based on the ADEA, Templeton v. Western Union Telegraph Co., 607 F.2d 89, 91 (5th Cir.1979), and is intended to promote the speedy, informal, non-judicial resolution of discrimination claims, and to preserve evidence and records relating to the alleged discriminatory action. Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195, 1198-99 (5th Cir.1975). It is now established that this notification requirement is not a jurisdictional prerequisite that deprives a court of subject matter jurisdiction, but a requirement more in the nature of a statute of limitations that is subject to equitable tolling. Coke v. General Adjustment Bureau, 640 F.2d 584, 595 (5th Cir.1981) (en banc). Whether to toll this statutory period is determined on a case-by-case basis, depending on the equities of the situation. In this case, appellant asserts that equitable tolling is appropriate in light of Alabama-By-Products’ failure to post conspicuous notice of ADEA rights (as required by 29 U.S.C. § 627 ), which deprived him of the opportunity to discover his specific rights under the ADEA. The appellee replies that tolling is not necessary, in that appellant was well aware of his right not to be discriminated against but neglected to contact an attorney or otherwise act on those rights. Templeton v. Western Union Telegraph Co., 607 F.2d 89 (5th Cir.1979), presented a set of facts very similar to our present situation. There, the plaintiff alleging age discrimination admitted that he had seen the 1968 poster prepared by the Secretary of Labor notifying employees of the existence of the ADEA, that he was aware of his right not to be discriminated against in employment on the basis of his age, and that he believed that he was a victim of age discrimination when he retired. Id. at 91. Plaintiff argued that he was unaware of the 180-day notification period, and that this" }, { "docid": "4987502", "title": "", "text": "transmitted notice to the United States Attorney for this district of the defendant’s challenge to an act of Congress, see Local Rule 27, the court has had the benefit of a joint memorandum, focusing solely on the ADEA claim, filed by the Equal Employment Opportunity Commission (EEOC) and the United States as amici curiae. The gauntlet which Bulova throws down in response to the plaintiffs’ age discrimination count proclaims, in essence, that this claim should be dismissed for want of subject matter jurisdiction because the plaintiffs failed to comply with certain statutory prerequisites prior to the commencement of suit. But, this distillation of Bulova’s position belies its sophisticated logodaedalus. Some explication is required. When enacted, the ADEA vested enforcement authority in the Secretary of Labor and provided, in relevant part, that [n]o civil action may be commenced by any individual under this section until the individual has given the Secretary not less than sixty days’ notice of an intent to file such action. Such notice shall be filed ... within one hundred and eighty days after the alleged unlawful practice occurred____ Pub.L. No. 90-202, § 7(d), 81 Stat. 602, 605 (1967) (current version codified at 29 U.S.C. § 626(d)). In 1978, this section was amended to reflect, inter alia, the transfer of enforcement authority from the Secretary of Labor to the EEOC: No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Commission. Such a charge shall be filed ... within 180 days after the alleged unlawful practice occurred____ Pub.L. No. 95-256, § 4(b)(1), 92 Stat. 189, 190 (1978) (codified at 29 U.S.C. § 626(d)). The amended version was in force at all times relevant to the origin and assertion of the plaintiffs’ discrimination charge against Bulova. And, there is no dispute but that the plaintiffs complied in a timely fashion with these amended filing requirements. The sticking point, however, as Bulova views it, is that the transfer of authority from the Secretary of Labor to the EEOC was invalid. That transmogrification was effected" }, { "docid": "19678784", "title": "", "text": "claim can be reasonably expected to grow out of the EEOC charge.” Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 379 (6th Cir.2002) (citation omitted). We now hold, in light of Arbaugh, that although administrative exhaustion is still a statutory prerequisite to maintaining claims brought under the ADEA, the prerequisite does not state a limitation on federal courts’ subject matter jurisdiction over such claims. To reach this conclusion, we look to the statute that sets forth the requirement at issue. See Arbaugh, 546 U.S. at 515-16, 126 S.Ct. 1235 (indicating that the clear-statement rule involves looking to the “statutory limitation” to determine whether such limitation is jurisdictional (emphasis added)). HHC cites the provision 29 U.S.C. § 623(d) for the proposition that “filing an age discrimination charge with the EEOC is a jurisdictional prerequisite to the filing of a civil action.” But that subsection does not address prerequisites at all. See id. (making it unlawful for employers to discriminate against employees for participating in a proceeding litigated under the ADEA). We assume that HHC intended to cite 29 U.S.C. § 626(d) instead because this provision sets forth administrative filing requirements that are relevant to this case. See Vinson v. Ford Motor Co., 806 F.2d 686, 688 (6th Cir.1986) (citing 29 U.S.C. § 626(d) for the proposition that “[i]t is well settled that the filing of a charge with the EEOC is a jurisdictional prerequisite to the filing of a civil action under ADEA.”) Section 626(d) provides that [n]o civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the [EEOC]. Such a charge shall be filed— (1) within 180 days after the alleged unlawful practice occurred; or (2) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier. Upon receiving such a charge, the Commission shall promptly notify all persons named in such charge" }, { "docid": "4060675", "title": "", "text": "was commenced on September 28, 1982. Hertz claims that we lack jurisdiction over the ADEA violation claim alleged in Count I since the charge filed with the EEOC on August 24, 1982 was untimely under 29 U.S.C. § 626(d). 29 U.S.C. § 626(d) provides in pertinent part: (d) No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Secretary. Such a charge shall be filed— (1) within 180 days after the alleged unlawful practice occurred; or (2) in a case to which section 14(b) applies [referring to acts of discrimination occurring in States with fair employment practice agencies], within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier. 29 U.S.C. § 626(d). Pennsylvania has a fair employment practice agency; therefore, the 300-day period applies. Ms. Butz filed her charge of discrimination with the EEOC on August 24,1982, 698 days after the date of alleged discrimination which was September 25, 1980. Thus, her charge of discrimination was clearly filed beyond the 300-day statutory period. This, however, is not sufficient to support Hertz’s claim that because the filing of the charge was untimely, we lack jurisdiction over the ADEA claim. The statutory requirement that the charge of discrimination must be filed with the EEOC within 300 days of the alleged unlawful practice is not a jurisdic tional prerequisite but is merely a statute of limitations. Bonham v. Dresser Industries, Inc., 569 F.2d 187, 192 (3d Cir.1977), cert. denied 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978). Since it is a statute of limitations, it is subject to possible tolling. Id. One possible way of tolling the statute is if the plaintiff establishes that she did not know of her rights under the ADEA. 29 U.S.C. § 627 provides that an employer shall post notice in its place of employment as to the existence of the ADEA and the rights thereunder. Case law has established" }, { "docid": "6452663", "title": "", "text": "unlawful for an employer to “fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). 1. Administrative prerequisites to suit under the ADEA The ADEA requires that within 180 days of the alleged unlawful conduct by an employer, the employee file a charge outlining the unlawful conduct with the Equal Employment Opportunity Commission (EEOC). 29 U.S.C. § 626(d) (1982). The EEOC then notifies the employer and seeks “to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion.” Id. If the parties have not compromised after 60 days, the employee can file a civil suit under the ADEA. Id. See also Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978) (notice must be given of the intention to sue so that the EEOC or Secretary of Labor can attempt to eliminate the alleged unlawful practice through informal methods); Brooks v. Monroe Sys. For Business, Inc., 873 F.2d 202, 205 (8th Cir.) (“The ADEA states that a civil action may not be commenced until sixty days after a charge alleging unlawful discrimination has been filed with the EEOC,” citing 29 U.S.C. § 626(d)), cert. denied, 493 U.S. 853, 110 S.Ct. 154, 107 L.Ed.2d 112 (1989). Filing with the EEOC is a condition precedent to later filing a suit under the ADEA. Boge v. Ringland-Johnson-Crowley Co., 976 F.2d 448, 450-51 (8th Cir.1992) (filing of charge with EEOC is required before employee may initiate a civil suit under the ADEA); Heideman v. PFL, Inc., 904 F.2d 1262, 1265 (8th Cir.1990) (filing with EEOC is a “prerequisite” to suit under the ADEA), cert. denied, 498 U.S. 1026, 111 S.Ct. 676, 112 L.Ed.2d 668 (1991); Walker v. St. Anthony’s Medical Ctr., 881 F.2d 554, 556 (8th Cir.1989) (timely filing of EEOC charge is “prerequisite” to suit); Brooks, 873 F.2d at 205 (EEOC filing is a “condition precedent” to suit under the ADEA); Kriegesmann v. Barry-Wehmiller Co., 739 F.2d 357 (8th" }, { "docid": "11709650", "title": "", "text": "by the final pre-trial conference set for October 19, 1989. On March 10, 1989, the court issued an order denying Daugh-erity’s earlier pro se motion for summary judgment, holding that the defendant had established that genuine issues of material fact existed in the case. . Section 626(d), in relevant part, provides: No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission. Such a charge shall be filed— (1) within 180 days after the alleged unlawful practice occurred; or (2) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier. In turn, § 633(b) provides that, in states that prohibit age discrimination in employment and have their own enforcement mechanism, a plaintiff must defer bringing suit under the ADEA until the expiration of sixty days after state proceedings have commenced. Indiana is not a \"deferral state” for purposes of the ADEA. See Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 541 (7th Cir.1988), cert. denied, 491 U.S. 907, 109 S.Ct. 3191, 105 L.Ed.2d 699 (1989); EEOC v. Gladieux Refinery, Inc., 631 F.Supp. 927, 931 (N.D.Ind.1986). Thus, the 180-day period is applicable to Mr. Daugherity’s claim. .Although Traylor referred to the non-exhaus- ' tion problem as a lack of subject matter jurisdiction, it is clear that, while failure to file the appropriate administrative claims is sufficient reason for dismissal, it is not a jurisdictional prerequisite. See Kephart v. Institute of Gas Tech., 581 F.2d 1287, 1288-89 (7th Cir.1978); see also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982). . Daugherity also lists the following three arguments in the introductory section of his brief: (1) whether a conflict of interest existed between Daugherity and his appointed counsel; (2) whether the district court judge \"displayed bias and prejudice toward plaintiff;” and (3)" }, { "docid": "5744091", "title": "", "text": "Title VII claims in the district court. (1) did Scarlett satisfy the administrative prerequisites to maintenance of his Title VII claim, and (2) if so, should the remaining plaintiffs be allowed to ride along? Section 2000e-5(e) of Title 42 provides: “A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred. . . . ” Courts, perhaps somewhat loosely, have referred to this 180-day requirement as a jurisdictional prerequisite. This court, however, has indicated that this requirement is in the nature of a statute of limitations and is not a prerequisite to subject matter jurisdiction. Coke v. General Adjustment Bureau, Inc., 640 F.2d 584 (5th Cir. 1981) (en banc). That view was recently affirmed by the Supreme Court in Zipes v. Trans World Airlines, Inc., - U.S. -, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). In Zipes the court expressly held that the 180-day filing period for Title VII claims is not jurisdictional but serves instead the function of a statute of limitations. -U.S. at-, 102 S.Ct. at 1132. Defendants argue that Scarlett did not file his charge with the EEOC within 180 days of any allegedly discriminatory act. The argument is not without merit. We do not have a copy of Scarlett’s 1976 charge, so it is impossible for us to determine what he alleges is the unlawful act which prompted it. We do have Scarlett’s 1972 charge, so we know what act prompted it; however, there is some suggestion that this lawsuit is not a product of that charge. The district court, however, found a way around the limitations problem. It concluded that Scarlett has not alleged that he suffered from a particular discriminatory act. Rather, Scarlett has alleged that the seniority system perpetuates illegal discrimination, and thus that the defendants continually violate Title VII. Inevitably then, Scarlett argues, illegal discrimination has occurred within 180 days of the filing of the charge. As this court has noted, “[c]ase law on the subject of continuing violations has been aptly described as ‘inconsistent and confusing,’ both prior to and since" }, { "docid": "1214686", "title": "", "text": "that plaintiff failed to file charges of unlawful demotion or retaliation with the Secretary of the Department of Labor within 180 days after the alleged unlawful acts occurred, as is required under the ADEA. Section 7(d) of the ADEA, 29 U.S.C. § 626(d) provides in pertinent part that: No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Secretary. Such a charge shall be filed- (1) within 180 days after the alleged unlawful practice occurred; Though in his complaint Scaramuzzo alleges that he has complied with all applicable notice and filing provisions, Glenmore points to Scaramuzzo’s Notice of Intent to Sue which was sent to the U.S. Department of Labor on March 23, 1980, and which states as follows: Pursuant to statute, you are hereby advised that Peter Scaramuzzo intends to sue against Glenmore Distilleries, Co., a Kentucky corporation located at 1700 Citizens Plaza, Louisville, Kentucky 40202, which maintains offices in Chicago, Illinois, for violations of the Age Discrimination in Employment Act of 1967 and the 1978 amendments. One of the bases of the lawsuit is the unlawful termination of Mr. Scaramuzzo in February, 1979, on account of his age. This letter constitutes the only charge filed with the Department of Labor by Scaramuzzo. Because this notice fails to specifically allege claims of unlawful demotion or retaliation, and because more than 180 days have passed since the demotion and alleged retaliation, Glenmore contends that these claims are time barred by the 180-day limitation of section 7(d) of the ADEA. Scaramuzzo, on the other hand, argues that Glen-more’s three discrete - actions were sufficiently related to one another such that Scaramuzzo’s claims of retaliation and demotion must be considered to be encompassed in the Notice of Intent to Sue mailed on March 23. Numerous courts have recognized the similarity between the ADEA and Title VII, and the comparability of their filing provisions often has been acknowledged in determining the timeliness of a claim brought pursuant to either Act. See, e. g., Coke v. General Adjustment" } ]

[ { "docid": "14816578", "title": "", "text": "(1972), have been complied with. See also, Scherk v. Alberto-Culver Co., 417 U.S. 506, 518-19, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974); National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964); Fireman’s Fund American Ins. Companies v. Puerto Rican Forwarding Cos., Inc., 492 F.2d 1294, 1296-97 (1 Cir. 1974); In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 234 n. 24 (6 Cir. 1972); National Equipment Rental, Ltd. v. Reagin, 338 F.2d 759 (2 Cir. 1964); Spatz v. Nascone, 364 F.Supp. 967, 974-79 (W.D.Pa.), supplemented, 368 F.Supp. 352, 355-56 (W.D.Pa.1973); Roach v. Hapag-Lloyd, A.G., 358 F.Supp. 481, 483 (N.D.Cal.1973); Restatement (Second) of the Conflict of Laws § 80 (1971); cf., Ringers’ Dutchochs, Inc. v. S.S.S.L. 180, 494 F.2d 678, 681 (2 Cir. 1974). In the Fireman's Fund case, 492 F.2d at 1296-97, the First Circuit summarized the Bremen v. Zapata holding in the following terms: The normal rule with respect to choice-of-forum clauses is that they should be enforced unless enforcement is shown by the resisting party to be “unreasonable” under the circumstances. (Citations omitted). To establish that a particular choice-of-forum clause is unreasonable, a resisting party must present evidence of fraud, undue influence, overweening bargaining power or such serious inconvenience in litigating in the selected forum that it is effectively deprived of its day in court (citation omitted). In similar fashion, the New York courts now march to a tune like that played by the Court in Bremen and leave the “enforcement of a forum selection clause to the sound discretion of the court.” Davis v. Pro Basketball, Inc., 381 F.Supp. 1, 3 (S.D.N.Y.1974). Accord, Hodom v. Stearns, 32 A.D.2d 234, 236, 301 N.Y.S. 2d 146, 148 (4th Dept.), appeal dismissed, 25 N.Y.2d 722, 307 N.Y.S.2d 225, 255 N.E.2d 564 (1969); Export Ins. Co. v. Mitsui S.S. Co., 26 A.D.2d 436, 438, 274 N.Y.S.2d 977, 980 (1st Dept. 1966). In Bremen, the Court, after first recognizing that “in. the light of present-day commercial realities and expanding international trade [a] forum clause should control absent a strong showing that it should" } ]

[ { "docid": "15258732", "title": "", "text": "and Chemical Corp., 324 F.Supp. 156, 158-59 (S.D.N.Y.1971). In the instant action, the litigation of related cases in Pittsburgh leads this Court to conclude that defendants’ motion should be granted. Plaintiff argues that various unique circumstances compel this Court to deny defendants’ motion to transfer. This Court cannot agree that these facts preclude granting defendants’ motion. Plaintiff first asserts that the forum selection clause appearing in Article 10, Section 1(c) of the indenture agreement, under which B & 0 issued the debentures, precludes transfer of the instant case outside New York. However, the law is clear that such a forum selection clause does not bar the subsequent transfer of the action to another district. See, e.g., Plum Tree, Inc. v. Stockment, 488 F.2d 754, 757 (3d Cir.1973); Credit Alliance Corp. v. Crook, 567 F.Supp. 1462, 1464 (S.D.N.Y.1983) (existence of forum selection clause typically “does not prevent court from ordering a change of venue under § 1404(a)”). “In the determination of a § 1404 motion, a forum selection clause is merely one of many factors to be considered by a court.” Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F.Supp. 71, 74 (S.D.N.Y.1978). The Court already has considered this factor in determining that, everything else aside, New York would provide a slightly more convenient forum than Pittsburgh for the parties and witnesses. However, as discussed above, the Court has determined that the “interests of justice” would be sufficiently advanced by the litigation of this case before Judge Weber to outweigh any modest inconvenience resulting from the transfer of the case to Pittsburgh. The forum selection clause thus should not prevent such a transfer. Plaintiff also opposes a transfer on the grounds that the Western District of Pennsylvania lacks venue to hear the instant case. Under the provisions governing federal securities fraud suits, venue is appropriate in any district where “an act or transaction constituting the violation occurred.” 15 U.S.C. § 78aa. [I]n a multi-defendant securities case in which a common scheme of acts or transactions to violate the securities law is alleged, the occurrence in the district of ‘any act" }, { "docid": "707718", "title": "", "text": "that matters of convenience should not be considered in determining whether to enforce the forum selection clause. The Bremen is again instructive: Of course, where it can be said with reasonable assurance that at the time they entered into the contract, the parties to a freely negotiated private ... commercial agreement contemplated the claimed inconvenience, it is difficult to see why such claim of inconvenience should be heard to under the forum selection clause unenforceable 407 U.S. at 16, 92 S.Ct. at 1916. See also Anastasi Bros. Corp. v. St. Paul Fire and Marine Ins. Co., 519 F.Supp. 862 (E.D.Pa.1981); Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F.Supp. 71 (S.D.N.Y.1978). Defendants also claim that four witnesses reside in Louisiana, some of whom possibly would not be subject to the subpoena power of the court. However, defendants do not identify any unwilling witnesses and do not suggest how they would be inconvenienced or prejudiced by relying on deposition testimony of any such non-party witnesses. See Kreisner v. Hilton Hotel Corp., 468 F.Supp. 176, 178 (E.D.N.Y.1979); Y4 Design, Ltd. v. Regensteiner Pub. Enterprises, 428 F.Supp. 1067, 1069 (S.D.N.Y.1977). GECC has non-party witnesses in New York who might be called upon to testify depending on the nature of any testimony offered by defendants. Moreover, this case does not presently appear to be of such complexity that numerous witnesses and documents would be required for a complete adjudication. The remainder of the issues, involving proof of a default under the Loan Agreement and collection under the Guarantees and Assumption Agreements, is virtually documentary. No public policy has been advanced that would be contravened if the forum selection clause is enforced. See Richardson Greenshields Securities, Inc. v. Metz, supra. In fact, by enforcing the clause, this court would encourage the policy of requiring parties to freely negotiate contracts to live up to their terms. It is well established that the plaintiffs choice of forum will not be disturbed unless the movant shows that the balance of convenience and notice weighs heavily in favor of transfer. Manu International S.A. v. Avon Products, Inc., 641" }, { "docid": "18034347", "title": "", "text": "that choice carries little weight”). This factor, then, also favors a New Jersey adjudication of this controversy. The existence of a forum selection clause is another factor to consider. The existence of such a clause, while not determinative, is entitled to some weight in determining a § 1404(a) motion to transfer. Plum Tree, Inc. v. Stockment, 488 F.2d 754, 757-58 (3d Cir.1973); Alpa S.A. Argoindustrial Alemano v. ACLI International Inc., 573 F.Supp. 1070, 1078 (S.D.N.Y.1983); International Investment and Equine Consultants, Inc. v. Jebrock, 573 F.Supp. 592, 593-94 (W.D.Pa.1983); Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F.Supp. 71, 74 (S.D.N.Y.1978). Although this case does not involve an exclusive forum selection clause, the parties have impliedly agreed that New Jersey would be a convenient forum. This implied agreement also favors a transfer. Another factor is which state's law is to govern the litigation. See, e.g., Copulsky, 545 F.Supp. at 128-29 (E.D.N.Y.1982). Even without the choice of law provision in the forum selection clause, there are sufficiently significant contacts with New Jersey to apply its substantive law: the agreement was executed in New Jersey; most of the operative facts occurred there; and, as a result, New Jersey has the greatest interest in this litigation. See Babcock v. Jackson, 12 N.Y.2d 473, 481-82, 191 N.E.2d 279, 283-84, 240 N.Y.S.2d 743, 749-50 (1963) (interest analysis); Auten v. Auten, 308 N.Y. 155, 160, 124 N.E.2d 99, 101-02 (1954) (center-of-gravity analysis). A New Jer sey federal court is better suited to apply New Jersey state law on restrictive covenants than is a New York federal court. See, e.g., Kreisner v. Hilton Hotel Corporation, 468 F.Supp. 176, 179 (E.D.N.Y.1979); Credit Alliance Corporation v. Nationwide Mutual Insurance Company, 433 F.Supp. 688, 689 (S.D.N.Y.1977); Y4 Design, 428 F.Supp. at 1070; Vaughn v. American Basketball Association, 419 F.Supp. 1274, 1278 (S.D.N.Y.1976); First National City Bank v. Nanz, Inc., 437 F.Supp. 184, 189 (S.D.N.Y.1975). Therefore, the applicability of New Jersey law also supports a transfer. Lastly, defendant has waived any arguments against litigating in New Jersey by consenting to the personal jurisdiction of New Jersey courts. This factor also favors" }, { "docid": "19844528", "title": "", "text": "9. The conduct of the parties. See, e.g., Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F.Supp. at 73; Gaskin v. Stumm Handel GmbH, 390 F.Supp. 361, 365 (S.D.N.Y.1975). While each of these factors has some degree of relevance and some claim to weight, there are no hard-and-fast rules, no precise formulae. The totality of the circumstances, measured in the interests of justice, will—and should—ultimately control. In the end, the party seeking to avoid the strictures of the forum selection clause must convince the court of the reality of “a set of qualitative factual circumstances warranting denial of enforcement.” Kolendo v. Jerell, Inc., 489 F.Supp. at 985. The first quartet of factors are cast in a traditional contract mold. By the terms of the agreements here before the court, California law will govern the construction and interpretation of the contract provisions. The agreements (except for the Offer) were signed by the plaintiff in Virginia and by the defendant in California; but, given the choice-of-law provision, it appears clear that, under California law, the place where the last necessary signature was affixed (in this instance, California) is deemed to be the place of execution. Hardy v. Musicraft Records, 93 Cal.App.2d 698, 709, 209 P.2d 839 (1949). While Computax lays claim to its domiciliary state as the place of performance in that the design, development and servicing of the software took place there, that boast is on shaky ground: the goods were obtained for use by D’Antuono in Rhode Island, to service Rhode Island clients. They were utilized in that fashion. Thus, while California has some involvement with performance, its contacts are not as direct, substantial or significant as those enjoyed by Rhode Island. Availability of remedies seems to be only a paper factor in this situation. A federal court sitting in diversity jurisdiction in either state would be adequately equipped to afford relief; and there is no reason to suspect that some idiosyncratic anodyne is available to the plaintiff in this forum which will be foreclosed to him in more westerly climes. Thus, the grouping of conventional contract factors, taken" }, { "docid": "6909505", "title": "", "text": "that the party seeking to avoid such a clause must satisfy a “heavy burden of proof’ to convince the court that the “serious inconvenience of the contractual forum” warrants setting aside the forum selection clause. Bremen, 407 U.S. at 17, 92 S.Ct. at 1917; Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, -, 111 S.Ct. 1522, 1528, 113 L.Ed.2d 622 (1991). While the forum selection clause in the parties’ contract does not preclude this court from granting defendants’ motion for a change of venue, the choice of forum already made by the parties should be given considerable weight in the court’s analysis. That analysis follows. 2. Analysis under 28 U.S.C. § lUOU Section 1404(a) names three factors to be considered in the transfer of a case: the convenience of parties, the convenience of witnesses, and the interest of justice. a. Convenience of parties In a case where the parties have already agreed to a particular forum, the “convenience of parties” weighs heavily in favor of hearing the case in the designated court. Defendants now protest that they will be seriously inconvenienced by defending this case in New York, but their prior agreement to this forum in effect substantively- rebuts arguments as to their personal convenience. See Plum Tree, Inc. v. Stockment, 488 F.2d 754, 758 (3d Cir.1973); Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F.Supp. 71, 74 (S.D.N.Y.1978); cf. Carnival Cruise, 499 U.S. at 593-94, 111 S.Ct. at 1527 (noting that cruise ship passengers likely benefited indirectly from choice of forum clause in form contract). The convenience of parties would thus appear better served by going forward in this district. b. Convenience of witnesses Defendants claim that witnesses vital to their defense are not subject to this court’s subpoena power and so cannot be made to testify in person. (Griffin Aff. at p. 2; Van Dover Aff. ¶ 10; Potash Aff. ¶ 14.) A party making a motion to transfer on the ground that witnesses will be inconvenienced is obliged to specify the witnesses to be called and to describe generally what they will say, thereby providing" }, { "docid": "8839274", "title": "", "text": "F.Supp. 284 (N.D.Ill.1984) (forum selection clause in trust agreement governed resolution of contract and tort claims arising under trust). (2) Reasonableness of Enforcement The next question is whether the enforcement of the forum selection clause is reasonable. Historically, a forum selection clause was per se invalid on the ground that it attempted to oust a court of its jurisdiction. In M/S Bremen v. Zapata OffShore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 1916, 32 L.Ed.2d 513 (1972), however, the Supreme Court held that the correct approach is to specifically enforce the forum clause unless the party opposing enforceability clearly shows “that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.” The federal courts have looked to a variety of factors to determine reasonableness under Bremen. In D’Antuono v. CCH Computax Systems, Inc., 570 F.Supp. 708 (D.R.I.1983), this Court, per Selya, J., identified these factors: (1) The identity of the law that governs the construction of the contract. (2) The place of execution of the contract. (3) The place where the transactions are to be performed. (4) The availability of remedies in the designated forum. (5) The public policy of the initial forum state. (6) Location of the parties, the convenience of prospective witnesses, and the accessibility of evidence. (7) The relative bargaining power of the parties and the circumstances surrounding their dealings. (8) The presence or absence of fraud, undue influence (or other extenuating) circumstances. (9) The conduct of the parties. D'Antuono, 570 F.Supp. at 712. As noted in D'Antuono: While each of these factors has some degree of relevance and some claim to weight, there are no hard-and-fast rules, no precise formulae. The totality of the circumstances, measured in the interests of justice, will—and should—ultimately control. In the end, the party seeking to avoid the strictures of the forum selection clause must convince the court of the reality of ‘a set of qualitative factual circumstances warranting denial of enforcement.’ Id. (quoting Kolendo v. Jerell, Inc., 489 F.Supp. 983, 985 (S.D.W.Va.1980)). The first four factors, viewed as a whole," }, { "docid": "19844526", "title": "", "text": "1983); Hoffman v. Burroughs Corp., at 550; Taylor v. Titan Midwest Construction Corp., 474 F.Supp. at 147. And, to the extent that Rhode Island law may be relevant to this inquiry, cf. Kolendo v. Jerell, Inc., 489 F.Supp. at 985, there are no re- ported cases directly on point, and no rational basis for the assumption that Rhode Island would not align itself with the weight of modern non-federal authority, e.g., Board of Education v. W. Harley Miller, Inc., 221 S.E.2d 882 (W.Va.1975), and subscribe to the Bremen view. Post-Bremen, the federal courts have synthesized and refined the rule, and have looked to a variety of factors in applying the Bremen yardstick of reasonableness. These include: 1. The identity of the law which governs the construction of the contract. See, e.g., Furbee v. Vantage Press, Inc., 464 F.2d 835, 837 (D.C.Cir.1972). 2. The place of execution of the contracts). See, e.g., Leasewell, Ltd. v. Jake Shelton Ford, Inc., 423 F.Supp. 1011, 1015-16 (S.D.W.Va.1976). 3. The place where the transactions have been or are to be performed. Id. See also Kline v. Kawai America Corp., 498 F.Supp. at 872. 4. The availability of remedies in the designated forum. See, e.g., Hoffman v. Burroughs Corp., at 549; Full-Sight Contact Lens Corp. v. Soft Lens, Inc., 466 F.Supp. at 73. 5. The public policy of the initial forum state (here, Rhode Island), see, e.g., Hoffman v. Burroughs Corp. at 549; Cutter v. Scott & Fetzer Co., 510 F.Supp. at 908, a consideration perhaps uniquely applicable where, as here, federal jurisdiction is bottomed on diversity of citizenship. 6. The location of the parties, the convenience of prospective witnesses, and the accessibility of evidence. See, e.g., Anastasi Brothers Corp. v. St. Paul Fire & Marine Insurance Co., 519 F.Supp. 862, 864 (E.D.Pa. 1981). 7. The relative bargaining power of the parties and the circumstances surrounding their dealings. See, e.g., Plum Tree, Inc. v. Stockment, 488 F.2d at 757. 8. The presence or absence of fraud, undue influence or other extenuating (or exacerbating) circumstances. See, e.g., Cutter v. Scott & Fetzer Co., 510 F.Supp. at 907." }, { "docid": "19844527", "title": "", "text": "performed. Id. See also Kline v. Kawai America Corp., 498 F.Supp. at 872. 4. The availability of remedies in the designated forum. See, e.g., Hoffman v. Burroughs Corp., at 549; Full-Sight Contact Lens Corp. v. Soft Lens, Inc., 466 F.Supp. at 73. 5. The public policy of the initial forum state (here, Rhode Island), see, e.g., Hoffman v. Burroughs Corp. at 549; Cutter v. Scott & Fetzer Co., 510 F.Supp. at 908, a consideration perhaps uniquely applicable where, as here, federal jurisdiction is bottomed on diversity of citizenship. 6. The location of the parties, the convenience of prospective witnesses, and the accessibility of evidence. See, e.g., Anastasi Brothers Corp. v. St. Paul Fire & Marine Insurance Co., 519 F.Supp. 862, 864 (E.D.Pa. 1981). 7. The relative bargaining power of the parties and the circumstances surrounding their dealings. See, e.g., Plum Tree, Inc. v. Stockment, 488 F.2d at 757. 8. The presence or absence of fraud, undue influence or other extenuating (or exacerbating) circumstances. See, e.g., Cutter v. Scott & Fetzer Co., 510 F.Supp. at 907. 9. The conduct of the parties. See, e.g., Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F.Supp. at 73; Gaskin v. Stumm Handel GmbH, 390 F.Supp. 361, 365 (S.D.N.Y.1975). While each of these factors has some degree of relevance and some claim to weight, there are no hard-and-fast rules, no precise formulae. The totality of the circumstances, measured in the interests of justice, will—and should—ultimately control. In the end, the party seeking to avoid the strictures of the forum selection clause must convince the court of the reality of “a set of qualitative factual circumstances warranting denial of enforcement.” Kolendo v. Jerell, Inc., 489 F.Supp. at 985. The first quartet of factors are cast in a traditional contract mold. By the terms of the agreements here before the court, California law will govern the construction and interpretation of the contract provisions. The agreements (except for the Offer) were signed by the plaintiff in Virginia and by the defendant in California; but, given the choice-of-law provision, it appears clear that, under California law, the place" }, { "docid": "19844522", "title": "", "text": "F.Supp. 868, 873 n. 5 (D.Minn.1980); others have acted without explicit reference to either statute, e.g., Taylor v. Titan Midwest Construction Corp., 474 F.Supp. 145 (N.D.Tex.1979). In this court’s view, 28 U.S.C. § 1406(a) controls in such a case. That statute is to be invoked when venue is improper, see Corke v. Sameiet M.S. Song of Norway, 572 F.2d 77, 79 (2d Cir.1978), as opposed to merely inconvenient. If the prelitigation agreements between the parties are enforceable, then the plaintiff’s choice of an inconsistent venue is simply wrong and should not be allowed to stand. Hoffman v. Burroughs Corp., 571 F.Supp. 545 at 551 (N.D.Tex.1982). See C. Wright, A. Miller, and E. Cooper, Federal Practice & Procedure § 3847, at 237 (1976). Far more than naked “convenience” is involved; indeed, by consenting to the inclusion of a forum designation in the contracts, the plantiff, to the extent that such a covenant is valid in a particular case, has waived any consideration of his convenience. Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F.Supp. at 74. In that 28 U.S.C. § 1406(a) controls in the first instance, the issue becomes the validity of the forum selection clause. This inquiry requires, initially, a backward glance at precedent. Historically, such clauses were held in low repute in the federal courts as being of dubious validity in that they restrained resort to the courts. E.g., Home Ins. Co. v. Morse, 87 U.S. (20 Wall) 445, 451, 22 L.Ed. 365 (1874) (dictum). The Morse view, however, is now universally regarded as “outmoded”. Kolendo v. Jerell, Inc., 489 F.Supp. 983, 985 (S.D.W.Va.1980). The more enlightened perspective is that postulated by the Supreme Court a decade ago in The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). While Bremen involved a suit in admiralty, its wisdom has been unhesitatingly applied in land-based diversity actions. See In re Fireman’s Fund Insurance Cos., Inc., 588 F.2d 93, 95 (5th Cir.1979); Fireman’s Fund American Insurance Companies v. Puerto Rican Forwarding Co., Inc., 492 F.2d 1294, 1296-97 (1st Cir.1974); Richardson Engineering Co. v." }, { "docid": "18034346", "title": "", "text": "Law at 14. The court agrees with defendant that it is logical that most of the witnesses and documents would be located in New Jersey and that this factor also weighs in favor of transferring this case to New Jersey. Another factor to consider is the residence of the parties. Copulsky, 545 F.Supp. at 128-29. Because plaintiff is incorporated and has its principal place of business in New Jersey, it does not, nor can it seriously, argue that New York is a more convenient forum than New Jersey, especially when none of the operative facts occurred in New York, but rather occurred in New Jersey. See Pesin v. Goldman, Sachs & Co., 397 F.Supp. 392, 394 (S.D.N.Y.1975) (“[although a plaintiff’s choice of forum is entitled to substantial weight, that weight may be diminished where, as here, suit is brought outside plaintiff’s home forum”); Ross v. Tioga General Hospital, 293 F.Supp. 209, 211 (S.D.N.Y.1968) (“where, as here, plaintiff has chosen a forum which is neither her home nor the place where the cause of action arose that choice carries little weight”). This factor, then, also favors a New Jersey adjudication of this controversy. The existence of a forum selection clause is another factor to consider. The existence of such a clause, while not determinative, is entitled to some weight in determining a § 1404(a) motion to transfer. Plum Tree, Inc. v. Stockment, 488 F.2d 754, 757-58 (3d Cir.1973); Alpa S.A. Argoindustrial Alemano v. ACLI International Inc., 573 F.Supp. 1070, 1078 (S.D.N.Y.1983); International Investment and Equine Consultants, Inc. v. Jebrock, 573 F.Supp. 592, 593-94 (W.D.Pa.1983); Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F.Supp. 71, 74 (S.D.N.Y.1978). Although this case does not involve an exclusive forum selection clause, the parties have impliedly agreed that New Jersey would be a convenient forum. This implied agreement also favors a transfer. Another factor is which state's law is to govern the litigation. See, e.g., Copulsky, 545 F.Supp. at 128-29 (E.D.N.Y.1982). Even without the choice of law provision in the forum selection clause, there are sufficiently significant contacts with New Jersey to apply its substantive" }, { "docid": "19844520", "title": "", "text": "These agreements were prepared by Computax, signed by D’Antuono in Virginia, sent to Computax in California, and inscribed there on the defendant’s behalf. Each agreement contained the following clauses: The laws of the State of California shall govern this Agreement. This Agreement shall be treated as though it were executed in the County of San Diego, State of California, and was to have been performed in the County of San Diego, State of California. Any action relating to this Agreement shall be instituted and prosecuted in the Courts of San Diego County, California. Customer specifically assents to extra-territorial service of process. Subsequent to the striking of the bargain and the delivery and installation of the purchased items, the relationship between the parties eroded to the point where D’Antuono brought this suit. His complaint contains three statements of claim. The first count asserts breach of warranty and misrepresentation; the second count charges violations of the so-called “Deceptive Trade Practices Act,” R.I.Gen.Laws §§ 6-13.1-1 et seq.; and the third count agglomerates the first two, topping off the resultant admixture with an assertion of entitlement to punitive damages. Thus, it is plain that this action is one “relating to” the serial agreements; and therefore, if the forum selection clause quoted above is enforced, transfer of the case will ineluctably result. A threshold question exists as to the statutory basis for the motion. As noted earlier, there are two provisions of the Judiciary Code which may arguably come into play. The federal courts have hop-scotched between these sections in weighing the effect of forum selection covenants. Compare, e.g., Cutter v. Scott & Fetzer Co., 510 F.Supp. 905, 909 (E.D.Wis.1981) (28 U.S.C. § 1406(a) controls); Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F.Supp. 71, 72-73 (S.D.N.Y.1978) (same); with Plum Tree, Inc. v. Stockment, 488 F.2d 754, 756-57 (3d Cir.1973) (court, without discussion, assumes that 28 U.S.C. § 1404(a) governs); Leasing Service Corp. v. Broetje, 545 F.Supp. 362, 369-70 (S.D.N.Y.1982) (28 U.S.C. § 1404(a) controls). Some courts have avoided the question by acting simultaneously under both statutes, e.g., Kline v. Kawai America Corp., 498" }, { "docid": "707717", "title": "", "text": "over LBC and Buquet, the third and fourth causes must be dismissed. Defendants have also sought dismissal on grounds of forum non conveniens or alternatively, transfer to the Eastern District of Louisiana under § 1404(a), Title 28. There is no showing that “trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.” The Bremen v. Zapata Off-Shore Co., supra, 407 U.S. at 18, 92 S.Ct. at 1917. See also Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273, 280 (9th Cir.1984); Richardson Greenshields Securities, Inc. v. Metz, supra, at 133. Buquet claims that he will be inconvenienced and suffer financial hardship as a result of having to come to New York to defend this action. Even if this were supported by more than his summary assertion, this is what the parties bargained for. In Visicorp v. Software Arts, Inc., 575 F.Supp. 1528, 1532 (N.D.Cal.1983), the Court when faced with the validity of a forum selection clause held: that matters of convenience should not be considered in determining whether to enforce the forum selection clause. The Bremen is again instructive: Of course, where it can be said with reasonable assurance that at the time they entered into the contract, the parties to a freely negotiated private ... commercial agreement contemplated the claimed inconvenience, it is difficult to see why such claim of inconvenience should be heard to under the forum selection clause unenforceable 407 U.S. at 16, 92 S.Ct. at 1916. See also Anastasi Bros. Corp. v. St. Paul Fire and Marine Ins. Co., 519 F.Supp. 862 (E.D.Pa.1981); Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F.Supp. 71 (S.D.N.Y.1978). Defendants also claim that four witnesses reside in Louisiana, some of whom possibly would not be subject to the subpoena power of the court. However, defendants do not identify any unwilling witnesses and do not suggest how they would be inconvenienced or prejudiced by relying on deposition testimony of any such non-party witnesses. See Kreisner v. Hilton Hotel Corp., 468 F.Supp. 176, 178" }, { "docid": "8645615", "title": "", "text": "(S.D.N.Y. 1980). A forum-selection clause mandates a waiver of § 1404 analysis only where the terms of the agreement identify the preselected forum as an exclusive forum for hearing disputes arising under the contract. Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F.Supp. 71 (S.D.N.Y. 1978) (Clause at issue read: “Any suit ... shall be brought in either San Diego or Los Angeles County” (emphasis added)); Credit Alliance, supra; Plum Tree, Inc. v. Stockment, 488 F.2d 754 (3rd Cir.1973). The language of the instant forum-selection clause is not mandatory. On the contrary, the wording is very similar to that in Credit Alliance: “[The parties] agree to the venue and jurisdiction of any court in the State and County of New York regarding any matter arising hereunder.” 567 F.Supp. at 1465. There the court stated, “this language empowers the New York courts to adjudicate this matter, it does not indicate that New York is the exclusive or the only appropriate forum ...” Id. (emphasis in original). Thus, while the forum-selection clause in this case empowers New York courts to hear actions between the parties which in the absence of the clause could not be heard, the clause does not preclude this Court from entertaining a motion to transfer pursuant to 28 U.S.C. 1404(a). (2) Transfer The party seeking transfer bears the burden of establishing the propriety of a § 1404(a) transfer. Teachers Insurance and Annuity Association of America v. Butler, 592 F.Supp. 1097 (S.D.N.Y.1984) (Weinfeld, J.). To determine whether the defendants have satisfied their burden, a number of factors are relevant: (1) the convenience to parties; (2) the convenience of witnesses; (3) the relative ease of access to sources of proof; (4) the availability of process to compel attendance of unwilling witnesses; (5) the cost of obtaining willing witnesses; (6) the practical problems indicating where the case can be tried more expeditiously and inexpensively; and (7) the interests of justice, a term broad enough to cover the particular circumstances of each case, which in sum indicate that the administration of justice will be advanced by a transfer. Id. at 1105;" }, { "docid": "19844521", "title": "", "text": "resultant admixture with an assertion of entitlement to punitive damages. Thus, it is plain that this action is one “relating to” the serial agreements; and therefore, if the forum selection clause quoted above is enforced, transfer of the case will ineluctably result. A threshold question exists as to the statutory basis for the motion. As noted earlier, there are two provisions of the Judiciary Code which may arguably come into play. The federal courts have hop-scotched between these sections in weighing the effect of forum selection covenants. Compare, e.g., Cutter v. Scott & Fetzer Co., 510 F.Supp. 905, 909 (E.D.Wis.1981) (28 U.S.C. § 1406(a) controls); Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F.Supp. 71, 72-73 (S.D.N.Y.1978) (same); with Plum Tree, Inc. v. Stockment, 488 F.2d 754, 756-57 (3d Cir.1973) (court, without discussion, assumes that 28 U.S.C. § 1404(a) governs); Leasing Service Corp. v. Broetje, 545 F.Supp. 362, 369-70 (S.D.N.Y.1982) (28 U.S.C. § 1404(a) controls). Some courts have avoided the question by acting simultaneously under both statutes, e.g., Kline v. Kawai America Corp., 498 F.Supp. 868, 873 n. 5 (D.Minn.1980); others have acted without explicit reference to either statute, e.g., Taylor v. Titan Midwest Construction Corp., 474 F.Supp. 145 (N.D.Tex.1979). In this court’s view, 28 U.S.C. § 1406(a) controls in such a case. That statute is to be invoked when venue is improper, see Corke v. Sameiet M.S. Song of Norway, 572 F.2d 77, 79 (2d Cir.1978), as opposed to merely inconvenient. If the prelitigation agreements between the parties are enforceable, then the plaintiff’s choice of an inconsistent venue is simply wrong and should not be allowed to stand. Hoffman v. Burroughs Corp., 571 F.Supp. 545 at 551 (N.D.Tex.1982). See C. Wright, A. Miller, and E. Cooper, Federal Practice & Procedure § 3847, at 237 (1976). Far more than naked “convenience” is involved; indeed, by consenting to the inclusion of a forum designation in the contracts, the plantiff, to the extent that such a covenant is valid in a particular case, has waived any consideration of his convenience. Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F.Supp. at" }, { "docid": "2912870", "title": "", "text": "system of Venezuela. .The D'Antuono factors consist of the following: 1. The identity of the law which governs the construction of the contract.... 2. The place of execution of the contracts) .... 3. The place where the transactions have been or are to be performed.... 4. The availability of remedies in the designated forum.... 5. The public policy of the initial forum state.... a consideration perhaps uniquely applicable where, as here, federal jurisdiction is bottomed on diversity of citizenship. 6. The location of the parties, the convenience of prospective witnesses, and the accessibility of evidence.... 7. The relative bargaining power of the parties and the circumstances surrounding their dealings.... 8. The presence or absence of fraud, undue influence or other extenuating (or exacerbating) circumstances.... 9. The conduct of the parties_ 570 F.Supp. at 712 (citations omitted). .The conditions imposed by the majority relative to appointment of a \"mutually acceptable\" replacement trustee and a \"meaningful effort\" on the trustees’ part to pursue Proyecfin’s claims in the courts of Venezuela, while seemingly mollifying the harshness of the dismissal, invite further litigation and delay and place the United States courts in a contra-comity posture of monitoring the Venezuelan courts. E.g., suppose the trustees as replaced make a settlement with BIV: must our courts determine whether the settlement is “meaningful”?" }, { "docid": "6188956", "title": "", "text": "the enforcement of a forum clause might be “unreasonable” appears to be a variation on the doctrine of forum non conveniens, with the burden placed on the party seeking to avoid enforcement of the clause. The Supreme Court ruled in this connection that the chosen forum must be shown to be “seriously inconvenient for the trial of the action” (emphasis in original), 407 U.S. at 16, 92 S.Ct. at 1916, and that the resisting party should bear “a heavy burden of proof.” 407 U.S. at 17, 92 S.Ct. at 1917. Since the claimed inconvenience would generally be foreseeable at the time the freely negotiated agreement was entered, “it should be incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be [so] gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.” 407 U.S. at 18, 92 S.Ct. at 1917. In applying the Bremen “reasonableness” standard, courts have looked at several factors. These have included (1) inconvenience of the parties and witnesses; (2) the governing law, and (3) the availability of remedies in the chosen forum. See Full-Sight Contact Lens Corp. v. Soft Lens, Inc., 466 F.Supp. 71, 73 (S.D.N.Y.1978); cf. Gordonsville Industries, Inc. v. American Artos Corp., 549 F.Supp. 200, 206 (W.D.Va.1982); Leasing Service Corp. v. Broetje, 545 F.Supp. 362 (S.D.N.Y.1982). Again, the hardship must be significant for the enforcement of the clause to be unjust. “Mere inconvenience or additional expense” will not suffice, Anastasi Bros. Corp. v. St. Paul Fire and Marine Ins. Co., 519 F.Supp. 862 (E.D.Pa.1981); Full-Sight, 466 F.Supp. at 73, since these are burdens which were allocated by the parties’ private bargain. Finally, as the third prong of the Bremen test, a court may decline to enforce a forum selection clause if enforcement would contravene a strong public policy of the forum. See Boyd v. Grand Trunk Western Ry. Co., 338 U.S. 263, 70 S.Ct. 26, 94 L.Ed. 55 (1949) (in action by injured employee based on the Federal Employers’ Liability, contract between railroad and employee restricting employee’s choice" }, { "docid": "8839275", "title": "", "text": "contract. (3) The place where the transactions are to be performed. (4) The availability of remedies in the designated forum. (5) The public policy of the initial forum state. (6) Location of the parties, the convenience of prospective witnesses, and the accessibility of evidence. (7) The relative bargaining power of the parties and the circumstances surrounding their dealings. (8) The presence or absence of fraud, undue influence (or other extenuating) circumstances. (9) The conduct of the parties. D'Antuono, 570 F.Supp. at 712. As noted in D'Antuono: While each of these factors has some degree of relevance and some claim to weight, there are no hard-and-fast rules, no precise formulae. The totality of the circumstances, measured in the interests of justice, will—and should—ultimately control. In the end, the party seeking to avoid the strictures of the forum selection clause must convince the court of the reality of ‘a set of qualitative factual circumstances warranting denial of enforcement.’ Id. (quoting Kolendo v. Jerell, Inc., 489 F.Supp. 983, 985 (S.D.W.Va.1980)). The first four factors, viewed as a whole, fail to establish that the forum selection clause is unreasonable. By the terms of the Purchase Agreement, Florida law governs the construction and interpretation of the contract. Both parties also agree that the Purchase Agreement was executed in Florida. Manufacture, sale and delivery of the vessel occurred in Florida. Both parties agree that there is no reason to conclude that lawful remedies are unavailable in either forum. Irwin North concedes that the public policy of Rhode Island “is not an issue” here. Next, in considering the convenience factors, this Court notes that the parties, in consenting to the forum selection clause in Florida, have in effect subordinated their convenience to the bargain. While Irwin North will have to travel to Florida for trial in the chosen forum, such a journey was apparently within the contemplation of the parties when the bargain was struck. “[Third-Party] Plaintiff cannot be heard to complain about inconveniences resulting from an agreement (he) freely entered into.” D’Antuono, 570 F.Supp. at 713 (quoting Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466" }, { "docid": "6188957", "title": "", "text": "parties and witnesses; (2) the governing law, and (3) the availability of remedies in the chosen forum. See Full-Sight Contact Lens Corp. v. Soft Lens, Inc., 466 F.Supp. 71, 73 (S.D.N.Y.1978); cf. Gordonsville Industries, Inc. v. American Artos Corp., 549 F.Supp. 200, 206 (W.D.Va.1982); Leasing Service Corp. v. Broetje, 545 F.Supp. 362 (S.D.N.Y.1982). Again, the hardship must be significant for the enforcement of the clause to be unjust. “Mere inconvenience or additional expense” will not suffice, Anastasi Bros. Corp. v. St. Paul Fire and Marine Ins. Co., 519 F.Supp. 862 (E.D.Pa.1981); Full-Sight, 466 F.Supp. at 73, since these are burdens which were allocated by the parties’ private bargain. Finally, as the third prong of the Bremen test, a court may decline to enforce a forum selection clause if enforcement would contravene a strong public policy of the forum. See Boyd v. Grand Trunk Western Ry. Co., 338 U.S. 263, 70 S.Ct. 26, 94 L.Ed. 55 (1949) (in action by injured employee based on the Federal Employers’ Liability, contract between railroad and employee restricting employee’s choice of venue held void); Cutter v. Scott & Fetzer Co., 510 F.Supp. 905 (E.D.Wis.1981) (in action by dealer against manufacturer which was largely governed by the Wisconsin Fair Dealership Law, a law enacted to protect the interests of persons such as the plaintiff, court declined to enforce the forum clause). III. In applying these principles to the present action, this Court finds that the forum selection clause should be enforced. First, the plaintiffs have not shown fraud or overreaching by Computax with respect to the forum clause. While the plaintiffs have alleged that certain fraudulent misrepresentations were made in connection with their agreement, they have not alleged that inclusion of the forum clause in the contract was the result of fraud. To the contrary, Gary Hoffman stated in an affidavit that the choice of law and choice of forum clauses were never discussed in the negotiations between plaintiffs and Computax. Plaintiffs also point out that the clause is included in a form contract provided by Computax. Because the clause was boilerplate and it was not" }, { "docid": "23641171", "title": "", "text": "For a discussion of the developments of the Erie doctrine, see Wm. H. McGee & Co. v. Liebherr America, Inc., 789 F.Supp. 861 (E.D.Ky.1992); Boggs v. Blue Diamond Coal Co., 497 F.Supp. 1105 (E.D.Ky.1980); W. Bertelsman, The Present Status of the Erie Doctrine, 54 Ky. Bench & Bar 10 (Winter 1990). . The issue was not settled by the Supreme Court in The Bremen, because jurisdiction in that case was based on maritime law. Therefore, there was no Erie issue. . 28 U.S.C. §§ 1391, 1404-1413. .If federal law covers the point in dispute, a court should not proceed \"to evaluate whether application of federal judge-made law would disserve the so-called 'twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.’ ” Stewart, 108 S.Ct. at 2243, n. 6. . 407 U.S. at 10, 92 S.Ct. 1907. There is no claim here of fraud or overreaching in including the forum selection clause in the franchise. . Id. at 12-13, 92 S.Ct. 1907. . Id. at 15, 92 S.Ct. 1907 (emphasis added). . Neither party brought MCLA § 445.1527(f) to the attention of the district court. . I believe the district court should have discretion to decide which to take up first. . The nine factors are: \"(1) the identity of the law that governs the construction of the contract; (2) the place of execution of the contract; (3) the place where the transactions have been or are to be performed; (4) the availability of remedies in the designated forum; (5) the public policy of the initial forum state; (6) the location of the parties, the convenience of prospective witnesses, and the accessibility of evidence; (7) the relative bargaining power of the parties and the circumstances surrounding their dealings; (8$ the presence or absence of fraud, undue influence or other extenuating (or exacerbating) circumstances; and (9) the conduct of the parties.”" }, { "docid": "14194536", "title": "", "text": "clause in a form contract. And, unlike the Bremen situation, it was in no way vital or even significant to the transaction. The clause was intended solely for the convenience of the defendant. The fact that a forum clause was in an obscure boilerplate provision, obviously inserted only for the convenience of the defendant, with no indication of having been freely bargained between the parties, was reason for denying enforcement of the clause in Cutter v. Scott & Fetzer Co., 510 F.Supp. 905 (E.D.Wis.1981). In Kline v. Kawai America Corp., 498 F.Supp. 868, 873 (D.Minn.1980), a forum selection clause in a contract between a piano dealer and importer was enforced. The court noted that the provision was boilerplate, but found that consideration balanced by the fact that the plaintiff was a sophisticated businessman, plaintiff refused to sign the contract until his attorney read it, and plaintiff voluntarily renewed the contract without change the next year. The reasoning of the Kawai case would warrant a denial of enforcement of the clause in the case now before the court. Plaintiff did not have an attorney, nor was he a sophisticated or experienced businessman. Further, there was a great disparity in bargaining power, a factor relied upon in nearly all the cases denying enforcement of this forum clause. See e.g. Kolendo v. Jerell, Inc., 489 F.Supp. 983 (S.D.W.Va.1980); Cutter v. Scott & Fetzer Co., 510 F.Supp. 905 (E.D.Wis.1981). Added to the factor of inequality of bargaining power — arguably determinative in itself — is the allegation here of fraud and overreaching. Plaintiff Couch claims he was virtually at the mercy of the defendant. He had already given defendant $15,-000.00 and wanted help getting his project financed. He had no experience in such matters, and no professional advice. He testified that he was being “put-off” by the defendant, and flew to California to try to get some action taken. The contract in question was then placed before him, and he signed it with no knowledge of the venue provision. Defendant pointed out certain provisions and had plaintiff initial them, but the venue provision was" } ]

[ { "docid": "7254763", "title": "", "text": "1969). We are disquieted by yet another facet of plaintiff’s approach to these proceedings. An unverified statement brought to our attention is to the effect that an attorney (or attorneys) have been, and still are, actively assisting him with legal advice and, in the main, by drawing v. the papers before v. now as well as those submitted on the prior motion. They are quite voluminous and by reason of their legal content and phraseology most strongly suggest that they emanate from a legal mind. If this be true, it should not be countenanced. It is one thing to give some free legal advice (incidentally, plaintiff is apparently not indigent); quite another to participate so extensively and not reveal one’s identity. If this is the case, we see no good or sufficient reason for depriving the opposition and the Court of the identity of the legal representative (s) involved so that we can proceed properly and with the relative assurance that comes from dealing in the open. Besides, where it is unnecessary we should not be asked to add the extra strain to our labours in order to make certain that the pro se party is fully protected in his rights. Most importantly, this unrevealed support in the background enables an attorney to launch an attack, even against another member of the Bar (as was done by this same plaintiff), without showing his face. This smacks of the gross unfairness that characterizes hit-and-run tactics. If this is the situation here, we vigorously condemn it. Our initial impression of plaintiff as an irresponsible litigant based on his record and our personal observations of him (including a frenzied diatribe which he advanced before v. by way of argument in open Court) has been more than amply confirmed by all that has developed in the course of this litigation. On the motions before us, however, we are strictly confined to considering the bare face of the record and are not triers of fact or of credibility. From what we have already recited, we are nonetheless left with the distinct belief of devoting attention" } ]

[ { "docid": "9827957", "title": "", "text": "404 U.S. at 520-21, 92 S.Ct. 594. We determine that the situation as presented here constitutes a misrepresentation to this court by litigant and attorney. See Johnson, 868 F.Supp. at 1231-32 (strongly condemning the practice of ghost writing as in violation of Fed.R.Civ.P. 11 and ABA Model Code of Professional Responsibility DR 1 — 102(A)(4)). Other jurisdictions have similarly condemned the practice of ghost writing pleadings. See, e.g., Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir.1971) (finding that a brief, “prepared in any substantial part by a member of the bar,” must be signed by him); Ostrovsky v. Monroe (In re Ellingson), 230 B.R. 426, 435 (Bankr.D.Mont.1999) (finding “[gjhost writing” in violation of court rules and ABA ethics); Wesley v. Don Stein Buick, Inc., 987 F.Supp. 884, 885-86 (D.Kan.1997) (expressing legal and ethical concerns regarding the ghost writing of pleadings by attorneys); Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F.Supp. 1075, 1077 (E.D.Va.1997) (finding it “improper for lawyers to draft or assist in drafting complaints or other documents submitted to the Court on behalf of litigants designated as pro se”); United States v. Eleven Vehicles, 966 F.Supp. 361, 367 (E.D.Pa.1997) (finding that ghost writing by attorney for pro se litigant implicates attorney’s duty of candor to the court, interferes with the court’s ability to supervise the litigation, and misrepresents the litigant’s right to more liberal construction as a pro se litigant). We recognize that, as of yet, we have not defined what kind of legal advice given by an attorney amounts to “substantial” assistance that must be disclosed to the court. Today, we provide some guidance on the matter. We hold that the participation by an attorney in drafting an appellate brief is per se substantial, and must be acknowledged by signature. In fact, we agree with the New York City Bar’s ethics opinion that “an attorney must refuse to provide ghostwriting assistance unless the client specifically commits herself to disclosing the attorney’s assistance to the court upon filing.” Rothermich, supra at 2712 (citing Committee on Profl and Judicial Ethics, Ass’n of the Bar of the City of New" }, { "docid": "9827953", "title": "", "text": "last action, the litigation is complete. At most, what Mr. Duran alleged is a property dispute which turned hostile at times. He has not, however, alleged the type of long-term criminal activity envisioned by Congress when it enacted RICO. Therefore, the district court’s grant of defendants’ motion to dismiss Mr. Duran’s RICO claims in his second amended complaint was appropriate. III. Lastly, we address defendants’ request for sanctions alleging that Mr. Duran’s pro se brief was actually “ghost-written” by his former attorney, Harry Snow. We issued a show cause order requesting that Mr. Duran and Mr. Snow show cause as to why this court should not sanction this behavior. We have received and considered the parties’ response. This court is concerned with attorneys who “author[ ] pleadings and necessarily guide[ ] the course of the litigation with an unseen hand.” Johnson v. Bd. of County Comm’rs, 868 F.Supp. 1226, 1231 (D.Colo.1994). Fed.R.Civ.P. 11(a) requires that “[e]very pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney’s individual name, or if the party is not represented by an attorney, shall be signed by the party.” Mr. Snow’s actions in providing substantial legal assistance to Mr. Duran without entering an appearance in this case not only affords Mr. Duran the bene fit of this court’s liberal construction of pro se pleadings, see Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), but also inappropriately shields Mr. Snow from responsibility and accountability for his actions and counsel. As stated in a recent law review article: The duty of candor toward the court mandated by Model Rule 3.3 is particularly significant to ghostwritten pleadings. If neither a ghostwriting attorney nor her pro se litigant client disclose the fact that any pleadings ostensibly filed by a self-represented litigant were actually drafted by the attorney, this could itself violate the duty of candor. The practice of undisclosed ghostwriting might be particularly problematic in light of the special leniency afforded pro se pleadings in the courts. This leniency is designed to compensate for" }, { "docid": "2877364", "title": "", "text": "that all pleadings must be afforded under Fed.R.Civ.P. 8. See Fed.R.Civ.P. 8(f) (“All pleadings shall be so construed as to do substantial justice.”). It is true that generally the pleadings of pro se litigants are construed with even more liberality than is required under Fed. R.Civ.P. 8. The rationale for extending this special liberality to the pleadings of pro se litigants is that, generally, pro se litigants are unfamiliar with legal terminology and the litigation process. For this reason, “[t]here are circumstances where an overly litigious inmate, who is quite familiar with the legal system and with pleading requirements, may not be afforded [the] special [liberality or] solicitude” that is normally afforded pro se litigants. For example, on several occasions, the Second Circuit has, quite appropriately in my opinion, diminished the special liberality normally afforded to a pro se litigant’s pleadings, and/or indicated the acceptability of such a diminishment, due to the pro se litigant’s extraordinary litigation experience. In addition to being unnecessary, I believe that an extension of special liberality to the pleadings of extraordinarily experienced pro se litigants would tilt the scales of justice unfairly in favor of the pro se litigant and against his opponents. Here, a review of on-line databases, including the Federal Judiciary’s Public Access to Court Electronic Records (“PACER”) System, reveals that, before he signed his Complaint in this action on May 1, 2006, Plaintiff — who has used at least three aliases — had filed at least four other federal or state court actions or appeals. Moreover, Plaintiff has adduced a sworn assertion establishing that, when he drafted his Complaint, he was a certified paralegal, having worked as a law clerk in the Gouverneur C.F. Law Library. No doubt due to his familiarity with legal terminology and the litigation process, he himself describes the allegations of his Complaint as having “been set forth in a consistent, coherent and credible manner.” (Dkt. No. 42, Part 3, at 2 [Plf.’s Opp. Memo, of Law].) Indeed, he goes so far as to state that he “articulates [himself] as coherently as [does his] adversary — if not" }, { "docid": "2877365", "title": "", "text": "extraordinarily experienced pro se litigants would tilt the scales of justice unfairly in favor of the pro se litigant and against his opponents. Here, a review of on-line databases, including the Federal Judiciary’s Public Access to Court Electronic Records (“PACER”) System, reveals that, before he signed his Complaint in this action on May 1, 2006, Plaintiff — who has used at least three aliases — had filed at least four other federal or state court actions or appeals. Moreover, Plaintiff has adduced a sworn assertion establishing that, when he drafted his Complaint, he was a certified paralegal, having worked as a law clerk in the Gouverneur C.F. Law Library. No doubt due to his familiarity with legal terminology and the litigation process, he himself describes the allegations of his Complaint as having “been set forth in a consistent, coherent and credible manner.” (Dkt. No. 42, Part 3, at 2 [Plf.’s Opp. Memo, of Law].) Indeed, he goes so far as to state that he “articulates [himself] as coherently as [does his] adversary — if not more so.” (Id, at 12.) Under the circumstances, I hesitate somewhat to afford Plaintiffs Complaint the full measure of special liberality normally afforded to the pleadings of inexperienced pro se litigants, since doing so would appear to risk tilting the playing field in his favor and against Defendants. (For example, reading certain claims into Plaintiffs Complaint at this late stage of the proceeding, when discovery is complete, would risk disadvantaging Defendants, who have already moved for summary judgment with regard to only the claims expressly appearing in the “Causes of Action” Section of Plaintiffs Complaint.) However, I am mindful that Plaintiff may not be so experienced at drafting pleadings as he believes himself to be. I am also mindful of the serious civil rights claims asserted in his Complaint (specifically, his assault claim). As a result, I construe Plaintiffs Complaint with special leniency. Construed extra-leniently, Plaintiffs Complaint asserts the following seventeen claims: Conspiracy, Excessive Force, and Failure to Protect (1) On January 6, 2005, Defendants Sobek, Snyder, Cushman, McAdam, John Doe # 1, and John" }, { "docid": "22601458", "title": "", "text": "standard than formal pleadings drafted by lawyers,” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991), “[t]his court has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.1994) (internal quotation marks omitted). Thus, although we make some allowances for “the [pro se] plaintiffs failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements!,]” Hall, 935 F.2d at 1110, the court cannot take on the responsibility of serving as the litigant’s attorney in constructing arguments and searching the record. See id. (“[W]e do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant.”). Plaintiffs briefs do not come close to complying with Federal Rule of Appellate Procedure 28. Subparagraphs (a)(5)-(9) of the Rule, for example, require an appellant’s brief to contain “a statement of the issues presented for review,” “a statement of the case briefly indicating the nature of the case, the course of proceedings, and the disposition below,” “a statement of facts relevant to the issues submitted for review with appropriate references to the record,” “a summary of the argument, which must contain a succinct, clear and accurate statement of the arguments made in the body of the brief,” and “the argument, which must contain: appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” Under Rule 28, which “applies equally to pro se litigants,” a brief “must contain ... more than a generalized assertion of error, with citations to supporting authority.” Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.2001). “[W]hen a pro se litigant fails to comply with that rule, we cannot fill the void by crafting arguments and performing the necessary legal research.” Id. Plaintiff has listed several issues for appeal and has subheadings of “Supporting Facts and Argument,” but his statement in support of each issue consists of mere conclusory allegations with" }, { "docid": "7272719", "title": "", "text": "598 F.2d 1050, 1051 (7th Cir.1979). He has not intimated how he intends to cure those deficiencies; nor has he offered a proposed amended complaint. In fact, the instant motion and memorandum strongly suggest that many if not all of the same defective claims would be resurrected were we to launch still another round of pleading. I do not think it would be an appropriate exercise of discretion to permit this, and I do not think the authorities in this circuit mandate it, particularly where the plaintiff is represented by counsel. See, e.g., Wakeen v. Hoffman House, Inc., 724 F.2d 1238, 1243-44 (7th Cir.1983); Jafree, supra, at 644-45. A plaintiff who has three lawyers working for him is not entitled to the same solicitude as one who is pro se, and in the former situation there are stricter limits on allowing a plaintiff to file complaint after complaint until he finally hits on something that will withstand a motion to dismiss. See, e.g., Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 175, 66 L.Ed.2d 163 (1980) (pleadings filed by pro se prisoner litigants held to “ ‘less stringent standards than formal pleadings drafted by lawyers’ ”) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972)); U.S. General, supra, at 1053; Hernas v. City of Hickory Hills, 517 F.Supp. 592, 593 (N.D.Ill.1981); Crumpacker, supra, at 330 & n. 7; Sell, supra, at 321; Palmer v. Coons, 581 F.Supp. 1160, 1162 (D.Va.1984). The second prong of the plaintiff’s motion for reconsideration concerns the sanction imposed under the amended version of rule 11. The plaintiff’s lawyers say such a sanction is not appropriate because they did extensive research before filing the amended complaint and thought they had adequate legal grounds for the multitude-of claims they made. They also point to the statement in the advisory committee’s notes which says the rule is not intended to chill an attorney’s enthusiasm or creativity. These arguments lack merit. In deciding to award a sanction in the amount of only one third of the defendants’ fees and costs" }, { "docid": "9827954", "title": "", "text": "individual name, or if the party is not represented by an attorney, shall be signed by the party.” Mr. Snow’s actions in providing substantial legal assistance to Mr. Duran without entering an appearance in this case not only affords Mr. Duran the bene fit of this court’s liberal construction of pro se pleadings, see Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), but also inappropriately shields Mr. Snow from responsibility and accountability for his actions and counsel. As stated in a recent law review article: The duty of candor toward the court mandated by Model Rule 3.3 is particularly significant to ghostwritten pleadings. If neither a ghostwriting attorney nor her pro se litigant client disclose the fact that any pleadings ostensibly filed by a self-represented litigant were actually drafted by the attorney, this could itself violate the duty of candor. The practice of undisclosed ghostwriting might be particularly problematic in light of the special leniency afforded pro se pleadings in the courts. This leniency is designed to compensate for pro se litigants’ lack of legal assistance. Thus, if courts mistakenly believe that the ghostwritten pleading was drafted without legal assistance, they might apply an unwarranted degree of leniency to a pleading that was actually drafted with the assistance of counsel. This situation might create confusion for the court and unfairness toward opposing parties. It is therefore likely that the failure to disclose ghostwriting assistance to courts and opposing parties amounts to a failure to “disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client,” which is prohibited by Model Rule 3.3. Undisclosed ghostwriting would also likely qualify as professional misconduct under Model Rules 8.4(c) and (d), prohibiting conduct involving a misrepresentation, and conduct that is prejudicial to the administration of justice, respectively. John C. Rothermich, Ethical and Procedural Implications of “Ghostwriting” for Pro Se Litigants: Toward Increased Access to Civil Justice, 67 Fordham L.Rev. 2687, 2697 (1999) (citing Model Rules of ProfI Conduct R 3.3(a)(2)) (footnotes omitted). It is disingenuous for Mr." }, { "docid": "7563429", "title": "", "text": "to the Claimants’ Itemized Statement of Counsel’s Hours, Rates and Expenses Claimants appeared pro se from the beginning of the litigation up until February 3, 1993 when the claimants’ attorney appeared before the Court for the first time. Claimants seek compensation for attorney’s fees for the time spent by counsel preparing pleadings for them and during which claimants purported to be proceeding pro se. The government accurately argues that pro se litigants are normally not entitled to attorneys’ fees. Kay v. Ehrler, 499 U.S. 432, 111 S.Ct. 1435, 113 L.Ed.2d 486 (1991). Claimants contend that attorneys should be and normally are awarded fees for work performed before the actual entry of their appearance. However, claimants fail to distinguish those cases in which an attorney is merely billing for work he or she did prior to entering a formal appearance from a case such as this where the claimants represented to the Court that they were pro se and signed all the court pleadings themselves, while in fact, they were receiving legal assistance by counsel. Important policy considerations militate against validating an arrangement wherein a party appears pro se while in reality the party is receiving legal assistance from a licensed attorney. One, participating in a ghost writing arrangement such as this, where the lawyer drafts the pleadings and the party signs them, implicates the lawyer’s duty of candor to the Court. See Rule 3.1(a)(1) of the Pennsylvania Rules of Professional Responsibility. Clearly, the party’s representation to the Court that he is pro se is not true when the pleadings are being prepared by the lawyer. A lawyer should not silently acquiesce to such representation. Two, ghost writing arrangements interfere with the Court’s ability to superintend the conduct of counsel and parties during the litigation. For example, certain conduct may be sanctionable if committed by counsel but not if committed by. a party. See, e.g., 28 U.S.C. § 1927. Knowing whether the pleadings were prepared by a lawyer or non-lawyer is therefore important to the administration of justice in the case. Moreover, the extent of pre-filing factual investigation and legal research" }, { "docid": "4131527", "title": "", "text": "L.Ed.2d 652 (1972); Swoboda v. Dubach, 992 F.2d 286, 289 (10th Cir.1993). Cheek’s pleadings seemingly filed pro se but drafted by an attorney would give him the unwarranted advantage of having a liberal pleading standard applied whilst holding the plaintiffs to a more demanding scrutiny. Moreover, such undisclosed participation by a lawyer that permits a litigant falsely to appear as being without professional assistance would permeate the proceedings. The pro se litigant would be granted greater latitude as a matter of judicial discretion in hearings and trials. The entire process would be skewed to the distinct disadvantage of the nonoffending party. Moreover, ghost-writing has been condemned as a deliberate evasion of the responsibilities imposed on counsel by Rule 11, F.R.Civ.P. What we fear is that in some cases actual members of the bar represent petitioners, informally or otherwise, and prepare briefs for them which the assisting lawyers do not sign, and thus escape the obligation imposed on members of the bar, typified by F.R.Civ.P. 11, but which exists in all cases, criminal as well as civil, of representing to the court that there is good ground to support the assertions made. We cannot approve of such a practice. If a brief is prepared in any substantial part by a member of the bar, it must be signed by him. We reserve the right, where a brief gives occasion to believe that the petitioner has had legal assistance, to require such signature, if such, indeed, is the fact. Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir.1971); see also Klein v. H.N. Whitney, Goadby & Co., 341 F.Supp. 699, 702-03 (S.D.N.Y.1971); Klein v. Spear, Leeds & Kellogg, 309 F.Supp. 341, 342-43 (S.D.N.Y.1970). Such an evasion of the obligations imposed upon counsel by statute, code and rule is ipso facto lacking in candor. The AJBA Standing Committee on Ethics and Professional Responsibility has stated that an undisclosed counsel who renders extensive assistance to a pro se litigant is involved in the litigant’s misrepresentation contrary to Model Code of Professional Responsibility DR 1-102(A)(4), which provides: “A lawyer shall not: ... (4) Engage in" }, { "docid": "7980330", "title": "", "text": "that “[a] lawyer may provide legal assistance to litigants appearing before tribunals ‘pro se’ and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance.” ABA Standing Comm, on Ethics & Profl Resp., Formal Op. 07-446, Undisclosed Legal Assistance to Pro Se Litigants (2007)(superseding ABA Comm, on Ethics & Profl Resp., Inf. Op. 1414). The ABA committee found that providing undisclosed legal assistance to pro se litigants constituted a form of limited representation, pursuant to ABA Model Rule of Professional Conduct 1.2(c), which states that “[a] lawyer may limit the scope of the representation [of a client] if the limitation is reasonable under the circumstances and the client gives informed consent.” Id. at 1. Regarding the benefit of liberal construction afforded to pro se pleadings, the ABA opinion stated that, “if the undisclosed lawyer has provided effective assistance, the fact that a lawyer was involved will be evident to the tribunal” and, in any event, when a pleading is of higher quality, there will be no reason to apply liberal construction. Id. at 3. On the other hand, according to the ABA opinion, “[i]f the assistance has been ineffective, the pro se litigant will not have secured an unfair advantage.” Id. The opinion concluded that, “[b]ecause there is no reasonable concern that a litigant appearing pro se will receive an unfair benefit from a tribunal as a result of behind-the-scenes legal assistance, the nature or extent of such assistance is immaterial and need not be disclosed.” Id. Regarding the attorney’s potential dishonesty in avoiding accountability for his representation, the ABA opinion explained that “[w]hether it is dishonest for the lawyer to provide undisclosed assistance to a pro se litigant turns on whether the court would be misled by failure to disclose such assistance.” Id. However, the opinion concluded that there is no such dishonesty as long as the client does not make an affirmative representation, attributable to the attorney, that the pleadings were prepared without an attorney’s assistance. Id. at 4. Similarly, in 2010, the Committee on Professional Ethics for the" }, { "docid": "10853295", "title": "", "text": "a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The plaintiff need not satisfy any “probability” requirement, but must set forth “more than a sheer possibility that a defendant has acted unwillingly.” Id. “[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). “When presented with a pro se litigant, [the Court has] a special obligation to construe his complaint liberally.” Higgs v. AG of the United States, 655 F.3d 333, 339 (3d Cir.2011) (citations omitted). “Thus, even if a pro se plaintiffs claims are not set out in the clearest fashion, the Court is obligated to discern all the possible claims that the Plaintiff may be alleging.” Thomas-Wamer v. City of Phila., 2011 WL 6371898, at *4, 2011 U.S. Dist. LEXIS 146029, at *10 (E.D.Pa. Dec. 20, 2011). However, in doing so the Court still determines whether pro se plaintiffs have alleged sufficient facts to support the claims divined from the pleadings. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949. Moreover, “[although the Court must accept well-pleaded facts as true, it need not credit bald assertions or legal conclusions.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429 (3d Cir.1997). DISCUSSION Nadine Pellegrino filed her complaint jointly with her husband, Harry Waldman. As a preliminary matter, however, his claims are dismissed for lack of standing, with the exception of the claims pursuant to the Freedom of Information Act (FOIA)," }, { "docid": "7980327", "title": "", "text": "Court in which a pro se party’s pleadings were drafted, or appeared to have been drafted, by an attorney, this Court has not yet addressed the issue of attorney ghostwriting. However, a number of other federal courts have found that attorneys who had ghostwritten briefs or other pleadings for ostensibly pro se litigants had engaged in misconduct. In Duran v. Carris, for example, the Tenth Circuit admonished an attorney for ghostwriting a pro se brief for his former client without acknowledging his participation by signing the brief. 238 F.3d 1268, 1271-73 (10th Cir.2001) (per curiam). The court stated that the attorney’s conduct had inappropriately afforded the former client the benefit of the liberal construction rule for pro se pleadings, had shielded the attorney from accountability for his actions, and conflicted with the requirement of Federal Rule of Civil Procedure 11(a) that all pleadings, motions, and papers be signed by the party’s attorney. See id. at 1271-72; see also, e.g., Ellis v. Maine, 448 F.2d 1325, 1328 (1st Cir.1971) (disapproving of members of bar “representing] petitioners, informally or otherwise, and preparing] briefs for them which the assisting lawyers do not sign, and thus escape the obligation imposed on members of the bar ... of representing to the court that there is good ground to support the assertions made”); Ira P. Robbins, Ghostwriting: Filling in the Gaps of Pro se Prisoners’ Access to the Courts, 23 Geo. J. Legal Ethics 271, 285 and n. 73 (2010) (“The federal courts have almost universally condemned ghostwriting.” (collecting cases)). On the other hand, a number of bar association ethics committees have been more accepting of ghostwriting. The ethics committee opinions described in the following paragraphs are representative of the range of views on the subject and suggest a possible trend toward greater acceptance of various forms of ghostwriting. A 1987 opinion of the New York City Bar’s Committee on Professional and Judicial Ethics requires an attorney who drafts “any pleadings” for a pro se litigant, other than a “previously prepared form devised particularly for use by pro se litigants,” to disclose that role to adverse" }, { "docid": "7563430", "title": "", "text": "policy considerations militate against validating an arrangement wherein a party appears pro se while in reality the party is receiving legal assistance from a licensed attorney. One, participating in a ghost writing arrangement such as this, where the lawyer drafts the pleadings and the party signs them, implicates the lawyer’s duty of candor to the Court. See Rule 3.1(a)(1) of the Pennsylvania Rules of Professional Responsibility. Clearly, the party’s representation to the Court that he is pro se is not true when the pleadings are being prepared by the lawyer. A lawyer should not silently acquiesce to such representation. Two, ghost writing arrangements interfere with the Court’s ability to superintend the conduct of counsel and parties during the litigation. For example, certain conduct may be sanctionable if committed by counsel but not if committed by. a party. See, e.g., 28 U.S.C. § 1927. Knowing whether the pleadings were prepared by a lawyer or non-lawyer is therefore important to the administration of justice in the case. Moreover, the extent of pre-filing factual investigation and legal research required to be done in a particular case may vary depending upon whether a party is represented by counsel or proceeding pro se. See Fed.R.Civ.P. 11. Finally, it would be unfair to construe a pro se litigant’s pleadings more liberally than the pleadings of a counselled litigant when in reality the pro se litigant has had the benefit of counsel. See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Therefore, the government’s objection to the claimants’ claim to attorney’s fees during the portion of the litigation that they were pro se litigants is sustained. The claimants will not be awarded attorneys’ fees for the period prior to February 3, 1993, the day counsel first appeared before the Court. The government’s other objections to the claimants’ attorneys’ fees are overruled. After reviewing the claimants’ statement of counsel’s hours, the Court conclude that the hours expended after counsel made his appearance in February 1993 are compensable. The Court finds that the claimants’ attorney reasonably performed 1182 hours of legal work on this" }, { "docid": "13909477", "title": "", "text": "request that the Court strike the pleadings. Reply at 4. Defendants assert that Plaintiff admitted to Defendant’s counsel that Lila Barbara Kanae, Esq. drafted the Second Amended Complaint for him. Reply at 7. The Court agrees that the Second Amended Complaint and Opposition appear to be written by an attorney but signed by Plaintiff, and the Court agrees that such a practice is inappropriate. See Ricotta v. State, 4 F.Supp.2d 961, 986 (S.D.Cal.1998) (citations omitted). The court in Ricotta looked to another federal court’s explanation of the issues surrounding ghost-writing: ghost-writing raisefs] three areas of concern. First, ... the standard practice of federal courts is to interpret filings by pro se litigants liberally and to afford greater latitude as a matter of judicial discretion. [Therefore,] allowing a pro se litigant to receive such latitude in addition to assistance from an attorney would disadvantage the nonoffending party. Second, ... ghost-writing is a deliberate evasion of the responsibilities imposed on counsel by Fed. R. Civ. P. 11. Rule 11 obligates members of the bar to sign all documents submitted to the court, to personally represent that there are grounds to support the assertions made in each filing. Third, ... such behavior implicate^] the Rules of Professional Responsibility, specifically the ABA’s Model Code of Responsibility DR I-102(A)(4), providing that an attorney should not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Additionally, ... ‘[hjaving a litigant appear to be pro se when in truth an attorney is authoring pleadings and necessarily guiding the course of the litigation with an unseen hand is ingenuous to say the least; it is far below the level of candor which must be met by members of the bar.’ Ricotta, 4 F.Supp.2d at 986 (internal citations omitted). The Court finds that striking Plaintiffs pleadings is too drastic a remedy. However, in light of the assistance Plaintiff received from counsel, the Court will not liberally construe them as it normally would for a pro se party. B. Defendant’s Request to Strike Plaintiffs Supplemental Memorandum Next, the Court will address Defendants’ request to strike Plaintiffs Supplemental Memorandum. Reply at" }, { "docid": "4131526", "title": "", "text": "against him in his individual capacity. This is not competent or zealous representation as envisaged by Rule 1.1. and has, moreover, led to this significant waste of judicial resources described above. Greer and her firm are welcome to represent Cheek in this action. So, too, Halaby and Liechty and their firm can enter as co-counsel fully sharing in the responsibility for Cheek’s representation. Neither of them, however, can create the absurd situation of representing one metaphysical Cheek and not the other. III. Ghostwriting for a Pro Se Litigant. Cheek confirmed at the hearing that the documents he filed “in his individual capacity and pro se,” although signed by him, were drafted by Fremont County Attorney Brenda Jackson. Such ghost-writing is far more serious than might appear at first blush. It necessarily causes the court to apply the wrong tests in its decisional process and can very well produce unjust results. It is elementary that pleadings filed pro se are to be interpreted liberally. Haines v. Kemer, 404 U.S. 519, 520, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972); Swoboda v. Dubach, 992 F.2d 286, 289 (10th Cir.1993). Cheek’s pleadings seemingly filed pro se but drafted by an attorney would give him the unwarranted advantage of having a liberal pleading standard applied whilst holding the plaintiffs to a more demanding scrutiny. Moreover, such undisclosed participation by a lawyer that permits a litigant falsely to appear as being without professional assistance would permeate the proceedings. The pro se litigant would be granted greater latitude as a matter of judicial discretion in hearings and trials. The entire process would be skewed to the distinct disadvantage of the nonoffending party. Moreover, ghost-writing has been condemned as a deliberate evasion of the responsibilities imposed on counsel by Rule 11, F.R.Civ.P. What we fear is that in some cases actual members of the bar represent petitioners, informally or otherwise, and prepare briefs for them which the assisting lawyers do not sign, and thus escape the obligation imposed on members of the bar, typified by F.R.Civ.P. 11, but which exists in all cases, criminal as well as" }, { "docid": "7272720", "title": "", "text": "L.Ed.2d 163 (1980) (pleadings filed by pro se prisoner litigants held to “ ‘less stringent standards than formal pleadings drafted by lawyers’ ”) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972)); U.S. General, supra, at 1053; Hernas v. City of Hickory Hills, 517 F.Supp. 592, 593 (N.D.Ill.1981); Crumpacker, supra, at 330 & n. 7; Sell, supra, at 321; Palmer v. Coons, 581 F.Supp. 1160, 1162 (D.Va.1984). The second prong of the plaintiff’s motion for reconsideration concerns the sanction imposed under the amended version of rule 11. The plaintiff’s lawyers say such a sanction is not appropriate because they did extensive research before filing the amended complaint and thought they had adequate legal grounds for the multitude-of claims they made. They also point to the statement in the advisory committee’s notes which says the rule is not intended to chill an attorney’s enthusiasm or creativity. These arguments lack merit. In deciding to award a sanction in the amount of only one third of the defendants’ fees and costs rather than the full amount, which I believe could have been justified here, I allowed for the possibility that the plaintiff’s lawyers may have felt there was some viable legal argument to support ce oain of the claims they made. Based on my analysis of the complaint I was, if anything, quite lenient toward the plaintiff in this regard. For even if it were accepted that some of his claims could be justified under an argument that existing law should be extended, there are more than enough claims that could never be so justified to support the sanction I levied. Even under the most liberal view this complaint was heavily freighted with claims that had no plausible legal basis. The plaintiff has implicitly conceded this by his total failure to present in the instant motion any grounds whatever for reconsideration of the majority of his claims. Cf. Booker v. City of Atlanta, 586 F.Supp. 340 (N.D.Ga.1984) (sanction imposed under rule 11 when party made no effort to justify assertion of a position that was “unmistakably" }, { "docid": "6436878", "title": "", "text": "and not the legality of his confinement or incarceration that is the real issue. Therefore, it is of significant importance that the case be properly posited, so that the issue can be placed in proper perspective. As was made abundantly clear, Appellant is not a lawyer but was a pro se litigant at the inception of his suit. Therefore, his complaint is not expected to have neither the artfulness nor the distinguishing legal nuances of a complaint drafted by an experienced attorney. Nonetheless, all pleadings shall be construed as to do substantial justice. See, Rule 8(f), Federal Rules of Civil Procedure and Wright and Miller, Federal Practice and Procedure, Section 1286. Further, it is not the designation assigned a claim by a litigant, but rather the substance of the allegations and the relief that the litigant seeks that are determinative of the nature of the suit. Additionally, after counsel was appointed for the Appellant, counsel succinctly stated the nature of the case in his memorandum of law filed with the trial court and made a part of the appeal appendix. It states at page A-44: “As properly construed, plaintiff’s pro se pleading should be considered a civil action filed against officials of the Virgin Islands Government in their official capacity seeking the following remedies: (a) That his prison file be corrected by the expungement of erroneous information; and (b) That defendants/respondents be ordered to transfer plaintiff/petitioner to the Golden Grove Correction Facility to serve the remainder of his sentence pending any change of condition which would otherwise justify his transfer pursuant to 5 V.I.C. 4503(c).” Similarly, the trial court placed the suit in proper perspective when it stated the following in its opinion: “However, Joseph does not question either his conviction or his sentence. He seeks neither release nor reduction in sentence. Rather, he attacks what he claims was his impermissible transfer from a Virgin Islands institution to a stateside penitentiary. Indeed, his current position, advocated through counsel, is that his pro se pleading not be viewed as a true habeas corpus petition.” Despite the above, much time was expended" }, { "docid": "9870617", "title": "", "text": "justified depriving him of the special solicitude with which we approach pro se litigants for the entirety of the action. In reaching this conclusion, the Magistrate Judge relied on our decision in Davidson v. Flynn, 32 F.3d 27 (2d Cir. 1994), which involved a sparsely pleaded claim. In that case, this Court noted that, “such sparse pleadings by a pro se litigant unfamiliar with the requirements of the legal system may be sufficient at least to permit the plaintiff to amend his complaint to state a cause of action.” Id. at 31. Given that the plaintiff was “extremely litigious” and “quite familiar with the legal system and with pleading requirements,” however, this Court found that such sparse pleadings “render[ed] his due process claim insufficient.” Id. Were it necessary to reach this issue, we might conclude that Davidson should not be read as endorsing general withdrawal of the solicitude ordinarily afforded pro se litigants from a litigious complainant, at least absent a stronger showing than was present here that a pro se litigant has truly acquired the relevant experience. Instead, we might conclude that, pursuant to Davidson, it is appropriate to charge a pro se litigant with knowledge of, and therefore withdraw special status in relation to, particular requirements with which he is familiar as a result of his extensive prior experience in the courts. Accordingly, it is our recommendation that, when a court considers whether to withdraw a pro se litigant’s special status, it should consider not only that litigant’s lifetime participation in all forms of civil litigation, but also his experience with the particular procedural setting presented. Absent a strong showing that a pro se litigant has acquired adequate experience more generally, so as to render special solicitude unnecessary and potentially inappropriate, a court would do well to limit the withdrawal of special status to specific contexts in which the litigant’s experience indicates that he may be fairly deemed knowledgeable and experienced. Were we to reach this question, we might conclude that the broad revocation of Sledge’s special status as a pro se litigant was unwarranted. It is a" }, { "docid": "8216791", "title": "", "text": "been violated and that includes specific facts alleging how the [defendant or [defendants linked to each claim personally participated in the asserted violation.” Because the dismissal was with prejudice, the Tenth Circuit applied the so-called Ehrenhaus factors to determine whether such a sanction was warranted. In applying these factors, the court stated that the culpability of a pro se litigant for filing a “still-prolix amended complaint depends in great measure on the usefulness of the notice he or she received from the court about what is (and is not) expected in an initial pleading” In that case, the court held that the district court merely put the plaintiff on notice that he needed to present a short and plain amended complaint. Instead, the court held that the district court in that case could have included some “modest explanation, aimed at the lay person, describing what judges and lawyers mean when speaking of a short and plain statement consistent with Rule 8.” For example, a district court might helpfully advise a pro se litigant that, to state a claim in federal court, a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendant’s action harmed him or her; and, what specific legal right the plaintiff believes the defendant violated. While the above description is, “very basically put, the elements that enable the legal system to get weaving,” it was not meant to be a legal standard applicable to a represented litigant, because counsel is expected to know the rules of pleading without personal notice or explanation by the court. Thus, the Court applies the traditional legal standard for Rule 8 as set forth above, rather than the simplified explanatory language for pro se plaintiffs quoted by defendants. Rule 12(b)(6) and (c) In ruling on a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court assumes as true all well pleaded facts in plaintiffs complaint and views them in a light most favorable to plaintiff. A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require" }, { "docid": "19718402", "title": "", "text": "S.Ct. 2174, 2183, 135 L.Ed.2d 606 (1996) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137, 119 L.Ed.2d 351 (1992)). This court has never held that a plaintiff claiming denial of access to the courts must plead specific prejudice in the complaint, and we should not do so now. In fact, in Walker v. Mintzes, 771 F.2d 920 (6th Cir.1985), the only Sixth Circuit case that the district court cited in its decision, we remanded for further proof on the prejudice issue, even though after a seven-week trial “[tjhere [had been] no claim made ... that any particular prisoner was actually impeded in his access to the courts.” Id. at 932, aff'g in part, rev’g in part, and remanding Walker v. Johnson, 544 F.Supp. 345 (E.D.Mich. 1982). Litigants proceeding pro se are at a disadvantage in the unfamiliar world of law because they lack the specialized training of attorneys. Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir.1991). Pro se prisoners with meritorious Bounds claims are therefore doubly disadvantaged; they lack not only legal training, but also adequate legal resources. See Childs v. Pellegrin, 822 F.2d 1382, 1385 (6th Cir.1987) (“The claim [the plaintiff] makes is that he has been denied access to the materials that would permit him to learn what the rules of court required of him in order to conduct his case properly. It would be harsh, to say the least, to decline to consider [the Bounds claim] because it was procedurally incorrect, and we decline to do so.”). Of course, a pro se prisoner’s failure to satisfy an easily understood requirement, such as a date for the termination of discovery, deserves no special treatment from the courts. Jourdan, 951 F.2d at 110. In Jourdan, however, we distinguished between those dismissals based on failure to comply with “readily comprehended court deadlines of which [a plaintiff] was well-aware” and those based, as in this case, on “inartful pleading.” Id. “The drafting of a formal pleading presupposes some degree of legal training or, at least, familiarity with applicable legal principles, and pro se litigants" } ]

[ { "docid": "7868192", "title": "", "text": "first half of the month in May, June, and July, 1980, for the interest which accrued in each of the preceding months. Shortly after IPSCO made the payment in July for the June interest the Bank learned of IPSCO’s insolvency. On July 31, 1980, IPSCO filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code. 11 U.S.C. §§ 1101-1174, (Supp. Ill 1979). IPSCO as debtor-in-possession sought the return of the last three interest payments arguing they were preferential transfers because they were made within ninety days before the date of the filing of the petition of bankruptcy. Id. at § 547(b)(4)(A). The Bank argued that the payments fell within an exception to the preferential transfer section in § 547(c)(2) for payments made in the ordinary course of business and made not later than forty-five days after the debt was incurred. The parties stipulated that the payments were made in the ordinary course of business, so the only issue was whether the payments were made within forty-five days after the debt was incurred. IPSCO argued that the debt for the interest payments was incurred when the note was executed. The Bank argued that the debt was incurred daily as each day’s interest accrued. The bankruptcy court found in IPSCO’s favor, concluding that the debt for the interest payments was incurred when the note was executed. II. Analysis Before discussing the relevant statutes and case law, it is important to understand the contingent nature of the debt at issue. IPSCO was obligated to pay interest only for the time it retained the use of the money that the Bank had loaned to it. The interest accrued daily, and under the terms of the agreement IPSCO became obligated to pay at the scheduled rate at the end of the month. The Bank would not have a cause of action for nonpayment of the interest until the end of the month in which IPSCO retained use of the principal. IP-SCO had the option to prepay the loan, and if it did so the total interest payments would have been less than" } ]

[ { "docid": "23132688", "title": "", "text": "No defendant has convinced the Court that each element of this exception applies to his payments. Of all the defendants, only the Waitons put in evidence that one of their notes was executed, and hence the obligation to pay incurred, no more than 45 days before the transfer sought to be avoided. § 547(c)(2)(B). Certain defendants urge that a debt is incurred when due, so that all timely payments would satisfy the (c)(2)(B) element. As discussed above in connection with the meaning of “antecedent debt”, the courts uniformly hold that an obligation to repay the principal portion of a loan or investment is incurred when the debtor received the funds. For the reasons already set forth, this Court follows that view. The only disagreement among the courts involves the obligation to pay interest. Citing Iowa Premium as support, the defendants contend that 45 days worth of interest payments satisfy (c)(2)(B) because such an obligation is incurred as interest accrues over time. Although the Iowa Premium court appears to agree with the general rule that a debt is incurred when consideration for the debt passes to the debtor, the court likened the use of money over time to the use of utility service or leased property over time. 695 F.2d at 1111-1112. These analogies are ill-founded, as Judge Ross so well explains in his dissenting opinion. Id. at 1113-1114. Certainly, once the debtors received the invested funds, consideration for the payment of both principal and interest passed; the debtor does not consume a new resource over time. Further, the Court agrees with Judge Bare’s analysis and criticism in Property Leasing, 46 B.R. at 913-14. The Iowa Premium view is precluded by the definitions of “debt” and “claim” found in § 101. According to these provisions, a debt for interest is incurred when the debt- or obtains the funds, even if at that time the obligation is unmatured and contingent. Finally, no defendant here attempted to bring his payments within the facts of Iowa Premium. That court stressed the contingent nature of the debt at issue, for the loans there were subject" }, { "docid": "7868201", "title": "", "text": "may avoid any transfer of property of the debtor ... (4) made — (A) on or within 90 days before the date of the filing of the petition . Section 547(c) reads in pertinent part: The trustee may not avoid under this section a transfer— (2) to the extent that such transfer was— (A) in payment of a debt incurred in the ordinary course of business or financial affairs of the debtor and the transferee; (B) made not later than 45 days after such debt was incurred; (C) made in the ordinary course of business or financial affairs of the debtor and the transferee; and (D) made according to ordinary business terms .... . All the interest payments at issue were made within forty-five days of the accrual of interest for the first day of the month, see note 3, supra, so the entire month’s interest payment would be nonpreferential under the Bank’s argument. If the interest payments had not been made until later in the month, only the interest which had accrued within forty-five days of the pay ment would be nonpreferential under the Bank’s argument. . In In re Mindy’s, Inc., 17 B.R. 177, 179 (Bkrtcy.S.D.Ohio 1982), cited by the dissent as Carmack v. Zell, 17 B.R. 177 p. 1113-1114, post, the court held that a debt for rent is incurred as the lease progressed rather than (as the trustee contended) when the lease was executed. In dicta the court stated that rent is distinguishable from interest payments. We disagree with the dicta in this case. ROSS, Circuit Judge, dissenting, with whom HEANEY and McMILLIAN, Circuit Judges, join. It is my opinion that the interest payments were made more than 45 days after the debt was incurred, and I therefore dis sent. I do not share in the majority’s certainty that there can be no doubt as to when IPSCO became legally bound to make the interest payments. The parties agree that the sole issue on appeal is whether the transfer was made not later than 45 days after the debt was incurred as is required by section" }, { "docid": "7868203", "title": "", "text": "547(c)(2)(B). More simply, whether the debt for interest was incurred on November 13, 1979, when the note was executed, or monthly as each payment came due. I believe that the debt was incurred on November 13, 1979; thus, the interest payments were preferential transfers not insulated by the section 547(c)(2) exception. Congress has not defined when a debt is incurred. However, case law holds that a debt is “incurred” on the date upon which the debtor first becomes legally bound to pay. See Barash v. Public Finance Corp., 658 F.2d 504 (7th Cir.1981); In re McCormick, 5 B.R. 726 (Bkrtcy.N.D.Ohio 1980); In re Bowen, 3 B.R. 617 (Bkrtey.E.D.Tenn. 1980). I submit that Congress intended the phrase here involved to relate only to the date the debtor originally undertook the obligation to pay the debt in question; that is, the date the promissory note was signed. This is supported by Congress’ selection of the 45-day time period; Congress treated as nonpreferential an ordinary-course payment of trade credit in the first 15 days of the month following the month in which the legal obligation to pay arose. Section 547(c)(2) was not intended to cover the kind of transaction before this court. IPSCO had received the full consideration and was obligated to the Bank for the full amount for much more than 45 days before the interest payments were made. The section 547(c)(2) exception extends only to situations where payment is made within 45 days after the debtor first becomes legally bound to pay. Barash v. Public Finance Corp., supra, 658 F.2d at 512. I conclude that the interest payments were made more than 45 days after the debt was incurred and are avoidable preferences under section 547. I disagree with the majority’s explanation of the contingent nature of the interest payments made by IPSCO. At 1111. It is my view that a fixed obligation arose on November 13, 1979, by virtue of the execution of the promissory note. The majority states that the payments are of a contingent nature and the amount of interest was not reduced to a sum certain on" }, { "docid": "7868200", "title": "", "text": "meaning of the words are clear. We will treat interest obligations like any other debt and hold that a debt for interest payments is incurred on the date upon which the obligor first becomes legally bound to pay that interest. In this case the obligor first became legally bound to pay on the date on which the interest accrued. The judgment of the bankruptcy court is reversed. . The Honorable Richard F. Stageman, United States Bankruptcy Judge, Southern District of Iowa. . The case was reargued before the judges of the circuit in regular active service and the Honorable Floyd R. Gibson, Senior Circuit Judge, who elected to and was designated to participate because he was a member of the panel which originally decided the case. 28 U.S.C.S. § 46(c) (Cum.Stat.Serv.1982). . The April interest was paid on May 8, the May interest was paid on June 12, and the June interest was paid on July 15. . Section 547(b) reads in pertinent part: “Except as provided in subsection (c) of this section, the trustee may avoid any transfer of property of the debtor ... (4) made — (A) on or within 90 days before the date of the filing of the petition . Section 547(c) reads in pertinent part: The trustee may not avoid under this section a transfer— (2) to the extent that such transfer was— (A) in payment of a debt incurred in the ordinary course of business or financial affairs of the debtor and the transferee; (B) made not later than 45 days after such debt was incurred; (C) made in the ordinary course of business or financial affairs of the debtor and the transferee; and (D) made according to ordinary business terms .... . All the interest payments at issue were made within forty-five days of the accrual of interest for the first day of the month, see note 3, supra, so the entire month’s interest payment would be nonpreferential under the Bank’s argument. If the interest payments had not been made until later in the month, only the interest which had accrued within forty-five" }, { "docid": "7868202", "title": "", "text": "days of the pay ment would be nonpreferential under the Bank’s argument. . In In re Mindy’s, Inc., 17 B.R. 177, 179 (Bkrtcy.S.D.Ohio 1982), cited by the dissent as Carmack v. Zell, 17 B.R. 177 p. 1113-1114, post, the court held that a debt for rent is incurred as the lease progressed rather than (as the trustee contended) when the lease was executed. In dicta the court stated that rent is distinguishable from interest payments. We disagree with the dicta in this case. ROSS, Circuit Judge, dissenting, with whom HEANEY and McMILLIAN, Circuit Judges, join. It is my opinion that the interest payments were made more than 45 days after the debt was incurred, and I therefore dis sent. I do not share in the majority’s certainty that there can be no doubt as to when IPSCO became legally bound to make the interest payments. The parties agree that the sole issue on appeal is whether the transfer was made not later than 45 days after the debt was incurred as is required by section 547(c)(2)(B). More simply, whether the debt for interest was incurred on November 13, 1979, when the note was executed, or monthly as each payment came due. I believe that the debt was incurred on November 13, 1979; thus, the interest payments were preferential transfers not insulated by the section 547(c)(2) exception. Congress has not defined when a debt is incurred. However, case law holds that a debt is “incurred” on the date upon which the debtor first becomes legally bound to pay. See Barash v. Public Finance Corp., 658 F.2d 504 (7th Cir.1981); In re McCormick, 5 B.R. 726 (Bkrtcy.N.D.Ohio 1980); In re Bowen, 3 B.R. 617 (Bkrtey.E.D.Tenn. 1980). I submit that Congress intended the phrase here involved to relate only to the date the debtor originally undertook the obligation to pay the debt in question; that is, the date the promissory note was signed. This is supported by Congress’ selection of the 45-day time period; Congress treated as nonpreferential an ordinary-course payment of trade credit in the first 15 days of the month following" }, { "docid": "10164763", "title": "", "text": "under section 547(c)(2). In that case the Court distinguished Barash, finding that the Court had not addressed the question of interest payments as separate from principal payments. The Court in Iowa Premium Service accepted the Barash court’s interpretation of section 547(c)(2) to the extent that it held that a debt is incurred on the date when the debtor first becomes legally bound to pay. The court then found that the debt for interest payments where interest was due monthly was incurred on a monthly basis because the debtor had no obligation to pay the interest when the note arose but, instead, only became obligated to pay as it used the money. Because the debt for interest was incurred each month, on a continuing basis, the court found that the monthly interest payments had been made within 45 days of the date the debt was incurred and were subject to the exception. This Court thinks that the Iowa Premium court has taken a rather artificial and unnecessarily limited view of what occurs when a long-term loan is made. A loan is not really an ongoing series of transactions between the parties but a single transaction in which the debtor receives the principal and in consideration agrees to repay it along with whatever interest accrues. While the payment of interest may be contingent, the obligation to pay it, if necessary, arises when the debtor gets a property interest in the consideration exchanged. See In re Brown, 20 B.R. 554 (Rkrtcy.S.D.N.Y.1982). It seems clear to this Court, as it did to the three dissenters in Iowa Premium Service, that that occurs when the debtor accepts the money from the lender. See Iowa Premium Service, 695 F.2d at 1114 (Ross, Heaney and McMillian, J.J., dissenting). It is for this reason that the Barash court did not distinguish between payments of interest and principal in its discussion of the issue now before this Court. The Iowa Premium court stated that its analysis, which allows interest payments to fall within the ordinary course of business exception, comports with the policy of the Code to protect ordinary" }, { "docid": "7868199", "title": "", "text": "kept current, and Congress believed that such transactions would involve the provision of a product in one month and the billing for the product near the beginning of the following month. Levin, An Introduction to the Trustee’s Avoiding Powers, 53 Am.Bankr.L.J. 173, 186-87 (1979). The product a bank deals in is money, and a bank charges for the continued use of money. If IPSCO’s interpretation of the Act were adopted, banks would be in a disadvantaged position compared with trade creditors who deal in the sale of tangible goods. Putting banks in such a position would discourage them from giving loans to marginal debtors, which would increase the likelihood of bankruptcies. We are not suggesting that there are not countervailing policy considerations. When dealing with reorganization, one creditor’s gain is usually another’s loss. Congress could decide that banks are less in need of protection than other creditors and legislate accordingly. But a court should not make such a decision absent evidence of a congressional intent to do so, especially when the plain language and usual meaning of the words are clear. We will treat interest obligations like any other debt and hold that a debt for interest payments is incurred on the date upon which the obligor first becomes legally bound to pay that interest. In this case the obligor first became legally bound to pay on the date on which the interest accrued. The judgment of the bankruptcy court is reversed. . The Honorable Richard F. Stageman, United States Bankruptcy Judge, Southern District of Iowa. . The case was reargued before the judges of the circuit in regular active service and the Honorable Floyd R. Gibson, Senior Circuit Judge, who elected to and was designated to participate because he was a member of the panel which originally decided the case. 28 U.S.C.S. § 46(c) (Cum.Stat.Serv.1982). . The April interest was paid on May 8, the May interest was paid on June 12, and the June interest was paid on July 15. . Section 547(b) reads in pertinent part: “Except as provided in subsection (c) of this section, the trustee" }, { "docid": "7868205", "title": "", "text": "the date of execution. I disagree. The amount of interest could easily be reduced to a concrete amount by using the interest formula set out in the note itself; the only contingent feature was the clause which made the note subject to prepayment at IPSCO’s desire. The majority’s focus on the prepayment clause as reducing the interest obligation to that of a contingent obligation would allow all installment loan debtors to use this same reasoning. If an installment loan can be prepaid at any time, then the monthly payments are also not reduced to a sum certain and, therefore, section 547(c)(2) would also apply in that situation. The majority also relies on the fact that the bank would not have a cause of action for nonpayment of interest until the end of the month in which IPSCO retained use of the principal. Similarly, a bank would not have a cause of action for nonpayment of an installment loan until the end of the month in which the debtor retained use of the principal. That is why the court in Barash v. Public Finance Corp., supra, chose not to differentiate between the interest and the principal amounts in considering when a debt is incurred in an installment loan situation. The majority’s comparison of IPSCO’s payment of interest with a tenant’s payment of rent, at 1111, is contrary to the most recent pronouncement of the law. Carmack v. Zell, 17 B.R. 177 (Bkrtcy.S.D. Ohio 1982). In Carmack, the court declined to follow the rationale advanced by the trustee that the debt was incurred at the time of the original signing of the lease obligations. The total lease obligation, at that point in time, was not due and payable — it was only due and payable as the lease term progressed and as the lessee occupied the premises subject to the leasehold in accordance with the terms of the lease. Contrary to the suggestion of the trustee, this situation is not analogous to payments on a long-term unsecured note obligation. An unexpired lease on real estate is treated as an executory contract under" }, { "docid": "142227", "title": "", "text": "dates, the Court concludes that section 547(c)(2) is not applicable. A question remains, however, concerning when the debt was incurred with respect to the $1,321.92 in interest payments. This Court reaches the same conclusion as the Court of Appeals for the Eighth Circuit in Iowa Premium Service Co. v. First National Bank (In re Iowa Premium Service Co.), 695 F.2d 1109 (8th Cir.1982). That court held that “a debt for interest payments is incurred on the date upon which the obligor first becomes legally bound to pay that interest.” 695 F.2d at 1112. The court found that date to be the date on which the interest began accruing. Id. The payment agreement between Debtor and Defendant provided that if Debtor did not pay an invoice within thirty days from the date it was sent to Debtor, Debtor would be charged interest. Debtor failed to timely pay the April 6, 10, and 20, 1981, invoices, so Defendant charged Debt- or interest for late payments. Based upon the facts of this adversary proceeding, the Court finds that after the thirty-day period, Debtor became legally obligated to pay interest, and therefore Debtor incurred debt on May 7, 11, and 21, 1981. Debtor paid these charges within forty-five days after the interest accrued, and since it is an ordinary business term to charge interest on invoices not paid within thirty days, the interest payments are excepted from avoidance under section 547(c)(2). Defendant finally argues that the transfers are exempt from section 547(b) under section 547(c)(4). Three requirements must be met before this section is applicable. First, the creditor must extend new value after the challenged transfer is made to him. Second, the new value must be unsecured. Third, the new value must go unpaid. See Pettigrew v. Trust Company Bank (In re Bishop), 17 B.R. 180, 183, 8 Bankr.Ct.Dec. 852, 854-55, 5 Collier Bankr.Cas.2d 1515, 1519-20 (Bankr. N.D.Ga.1982); Remes v. Yeomans (In re Quality Plastics, Inc.), 41 B.R. 241, 242, 11 Collier Bankr.Cas.2d 163, 165 (Bankr.W.D. Mich. 1984). The evidence in this adversary proceeding demonstrates that Defendant gave no new value after receiving the" }, { "docid": "23132680", "title": "", "text": "import of the above cases is that the payment of a current obligation — i.e., an obligation currently due and owing — does not take the transfer out of § 547(b)(2), for a current obligation to pay may arise from an antecedent debt. Thus “current obligation” and “antecedent debt” are not mutually exclusive terms. See e.g. A.I. Credit Corp. v. Drabkin (In re Auto-Train Corp.), 49 B.R. 605, 612 (D.D.C.1985). Contrary to the Church’s view, it is irrelevant that investors could have or often did “roll-over” their investments rather than require payment when the notes matured or interest was due. A creditor always has the option of waiving or postponing his debtor’s obligation to pay; this does not mean that the obligation has not previously been created, but merely that payment is not yet required. See e.g. Keydata Corp. v. Boston Edison Co. (In re Keydata Corp.), 37 B.R. 324, 327 (Bankr.D.Mass.1983) (utility bill context). Various creditors also contend that a liability to pay interest is incurred each day as interest accrues, citing Iowa Premium Service Co. v. First National Bank (In re Iowa Premium Service Co.), 695 F.2d 1109 (8th Cir.1982). This argument will be considered in more detail below, in connection with the “45-day rule” of the ordinary course of business exception to preferences found in § 547(c)(2). For purposes of the “antecedent debt” requirement, however, even if this view were accepted, the payment of interest due would nevertheless be “on account of an antecedent debt”: The debtors paid interest for one month after it had accrued, at the beginning of the next month. The second reason for rejecting the Church’s interpretation of “antecedent debt” is that it would pervert the purpose of the “ordinary course of business” exception found in § 547(c)(2). This section excepts from avoidance those preferences which were: (A) in payment of a debt incurred in the ordinary course of business or financial affairs of the debtor and the transferee; (B) made not later than 45 days after such debt was incurred; (C) made in the ordinary course of business or financial affairs of" }, { "docid": "18576455", "title": "", "text": "accrued but unpaid post-transfer rentals, it must be determined whether this value was “new” credit or merely “an obligation substituted for an existing obligation” under the language of § 547(a)(2). The trustee claims that the debtor incurred its obligation to pay rent in full on the date the lease agreements were executed, not monthly as the lease progressed. Under this view, since the debtor had a preexisting obligation, extention of credit merely constituted a substitution of obligations, i.e., the obligation to pay for the accruing rentals at a future date rather than timely meeting the rental payments as they arose. Congress did not define when a debt is incurred. However, courts and commentators alike have recognized in interpreting § 547(c)(2) that a debt is incurred when the debtor first becomes legally bound to pay. See e.g. In re Iowa Premium Service Co., Inc., 695 F.2d 1109, 1111 (8th Cir.1982); Barash v. Public Finance Corp., 658 F.2d 504, 512 (7th Cir.1981); In re Mc Cormick, 5 B.R. 726, 731 (Bankr.N.D.Ohio 1980); Levin, An Introduction to the Trustee’s Avoiding Powers, supra at 187. In determining the issues of antecedent indebtedness and the § 547(c)(1) and (c)(2) exceptions, the bankruptcy court in In re Mindy’s, Inc., 17 B.R. 177, 179 (Bankr.S.D.Ohio 1982) stated: The Court declines to follow the rationale advanced by the trustee that the debt was incurred at the time of the original signing of the lease obligations. The total lease obligation, at that point in time, was not due and payable — it was only due and payable as the lease term progressed and as the lessee occupied the premises subject to the leasehold in accordance with the terms of the lease. The Eighth Circuit applied this rationale in holding that a debt for interest payments is incurred on the date on which the interest accrues, not the date the note is executed. In re Iowa Premium Service Co., Inc., supra. In so doing, the majority opinion distinguished several cases cited by the trustee in our case including In re Barash, supra; In re Mc Cormick, supra; and In re" }, { "docid": "7868208", "title": "", "text": "similar to that of a debtor in a credit card arrangement. The majority states: IPSCO can also be compared to a customer of an electric utility. The customer agrees to pay for whatever electricity it uses, but the debt to the utility is not incurred until the resource is consumed. A customer does not incur a debt when it makes the original agreement with the utility. Likewise, IPSCO agreed to pay interest for the use it made of the money, but the debt was not incurred until IP-SCO actually used the money. At 1111-1112. I agree that the debt is not incurred until the resource is consumed; however, IPSCO consumed the resource when it borrowed the money in November of 1979. IPSCO does not consume a new resource each month as does the electric utility consumer. Furthermore, IPSCO’s position is not comparable to that of a credit card user. The court in In re Brown, 20 B.R. 554 (Bkrtcy.S.D.New York 1982), held that credit card debts were incurred on the date when the debtor obtained a property interest in the consideration exchanged for the debt rather than when the invoice or statement was due. However, the court further held that the policy behind section 547(c)(2) was applicable to credit card agreements because: Short term credit, which normally involves relatively small amounts, was originally intended to be protected when the Commission on the Bankruptcy Law proposed that payments made within five days of the filing of the petition and payments in small amounts should be excepted from avoidance as preferences. Commission Report, Part II, pp. 166-67, § 4-607(b)(g)(l). Although the Commission’s proposal was not adopted in its original form, the 45-day limitation period continued the concept of protection for short term payments, which are usually relatively small in amount. Id. at 555-556. Thus, if the Commission desired only to protect short term payments in small amounts, credit card purchases could be excepted while large interest payments on a long term note would not be so excepted. I also take issue with the majority’s position that the only case which addresses the" }, { "docid": "7868204", "title": "", "text": "the month in which the legal obligation to pay arose. Section 547(c)(2) was not intended to cover the kind of transaction before this court. IPSCO had received the full consideration and was obligated to the Bank for the full amount for much more than 45 days before the interest payments were made. The section 547(c)(2) exception extends only to situations where payment is made within 45 days after the debtor first becomes legally bound to pay. Barash v. Public Finance Corp., supra, 658 F.2d at 512. I conclude that the interest payments were made more than 45 days after the debt was incurred and are avoidable preferences under section 547. I disagree with the majority’s explanation of the contingent nature of the interest payments made by IPSCO. At 1111. It is my view that a fixed obligation arose on November 13, 1979, by virtue of the execution of the promissory note. The majority states that the payments are of a contingent nature and the amount of interest was not reduced to a sum certain on the date of execution. I disagree. The amount of interest could easily be reduced to a concrete amount by using the interest formula set out in the note itself; the only contingent feature was the clause which made the note subject to prepayment at IPSCO’s desire. The majority’s focus on the prepayment clause as reducing the interest obligation to that of a contingent obligation would allow all installment loan debtors to use this same reasoning. If an installment loan can be prepaid at any time, then the monthly payments are also not reduced to a sum certain and, therefore, section 547(c)(2) would also apply in that situation. The majority also relies on the fact that the bank would not have a cause of action for nonpayment of interest until the end of the month in which IPSCO retained use of the principal. Similarly, a bank would not have a cause of action for nonpayment of an installment loan until the end of the month in which the debtor retained use of the principal. That is" }, { "docid": "22860658", "title": "", "text": "date upon which the debtor first becomes legally bound to pay.” In re Iowa Premium Service Co., 695 F.2d 1109, 1111 (8th Cir.1982) (en banc) (“IPSCO ”). Applying this standard, the bankruptcy court and the district court concluded that each weekly contribution payment was for an antecedent debt because Jones became obligated to pay pension and welfare benefits on a weekly basis under the applicable collective bargaining agreements, and the payments were made thereafter. Central States — supported by the National Coordinating Committee for Multiemployer Plans as amicus curiae — argues that this application of § 547(b)(2) threatens ERISA benefit plans with unfair preference liability. Because these employee benefit obligations are continuously accruing and can only as a practical matter be calculated and paid on a periodic basis, Central States argues that they are not for antecedent debts if they are paid within a commercially reasonable time after the employees’ services. This is a difficult issue, and there is precedent on both sides. On the one hand, In re Emerald Oil Co., 695 F.2d 833, 837 (5th Cir.1983), and our decision in IPSCO, 695 F.2d at 1112, support the district court’s analysis and rest on the logical premise that a debtor first becomes liable when a resource is consumed or a service performed, not when the creditor chooses to bill the debtor. Accord In re Cybermech, Inc., 13 F.3d 818, 822 (4th Cir.1994). But in IPSCO, the result was to delay when bank debt was incurred, which gave the bank creditor the benefit of the “ordinary course of business” exception in § 547(c)(2). In a ease such as this, on the other hand, literal application of the IPSCO standard accelerates the date that a continuously accruing debt is incurred. The result is that some debts will be labelled “antecedent” even though they were paid as quickly as the obligations could be calculated. For this reason, other courts have concluded that continuously accruing obligations such as rent and insurance premiums are not incurred until they are owing under the contract. See In re White River Corp., 799 F.2d 631, 633 (10th" }, { "docid": "20915593", "title": "", "text": "often cited is the case of In re Mindy’s, Inc., 17 B.R. 177 (Bankr.S.D.Ohio 1982) where the court, in reviewing a number of rental payments made anywhere from 5 to 18 days after the first of each month, found that each of the payments were substantially contemporaneous to the time the obligation arose. Since the obligation for rent was incurred on the first of each month, each payment would be considered a payment for an additional month of occupancy. See also In re Thomas W. Garland, Inc., 28 B.R. 87 (Bankr.E.D.Mo.1983). Following Mindy’s is our own Eighth Circuit wherein In re Iowa Premium Service Co., Inc., 695 F.2d 1109 (8th Cir.1982) the court made an en banc review of a bankruptcy court order concerning the issue of whether interest payments made within 90 days of the bankruptcy filing were preferential transfers. In that case, the debtor made regular payments of interest pursuant to the terms of a promissory note. In question were three payments made in May, June and July for interest which had accrued in each of those months. It was the bank’s position that the debt for interest was incurred only as each day’s interest accrued. The appellate court analogized the situation before it to that of a tenant who, said the court, “pays for a continued use of the property”. Hence, the debt was not incurred until the debtor actually used the money, and that occurred on a daily basis. In so holding, the appellate court chose to follow a line of cases which hold that under section 547(c)(2) a debt is incurred on the date the debtor first becomes obligated. Barash v. Public Finance Corp., 658 F.2d 504 (7th Cir.1981); In re Ken Gardner Ford Sales, Inc., 10 B.R. 632 (Bankr.E.D.Tenn.1981); and In re McCormick, 5 B.R. 726 (Bankr.N.D.Ohio 1980). From the evidence adduced at trial, it appears the payments were accepted as payments for the current month’s rental obligation and posted to the Debtor’s account as such. The circumstances of Matter of Lario, 36 B.R. 582 (Bankr.S.D.Ohio 1983) cited by the Trustee are dissimilar in" }, { "docid": "6538414", "title": "", "text": "became due. The trustee argues on his cross appeal that the rental debts were incurred on the date the lease was executed, December 2, 1980. Congress did not define when a debt is incurred. However, courts have recognized, in interpreting section 547(c)(2), that a debt is incurred when a debtor first becomes legally bound to pay. See, e.g., In re Iowa Premium Service Co., 695 F.2d 1109, 1111 (8th Cir.1982) (en banc); Barash v. Public Finance Corp., 658 F.2d 504, 512 (7th Cir.1981). We agree with the rationale set forth in In re Mindy’s, Inc., 17 B.R. 177 (Bankr.S.D.Ohio 1982), wherein the bankruptcy court, in determining the issues of antecedent indebtedness and the section 547(c)(2) exception, stated: The court declines to follow the rationale advanced by the trustee that the debt was incurred at the time of the original signing of the lease obligations. The total lease obligation, at that point in time, was not due and payable — it was only due and payable as the lease term progressed and as the lessee occupied the premises subject to the leasehold in accordance with the terms of the lease. 17 B.R. at 179. Another bankruptcy court applied this rationale to rent payments. In finding a certain rent payment not avoidable, it determined that the debtor did not become indebted for the rent payment until the time the rent was actually due. In re Clothes, Inc., 35 B.R. 489, 491-92 (Bankr.D.N.D.1983). The Eighth Circuit applied this rationale to interest payments, holding that a debt for interest payments is incurred on the date the interest accrues, not the date the note is executed. In re Iowa Premium Service Co., 695 F.2d at 1109. Other courts have used this same timing principle to hold that the “new value” exception under section 547(c)(4) applied to keep lease installments from being avoidable. See In re Quality Plastics, Inc., 41 B.R. 241 (Bankr.W.D.Mich.1984); In re Thomas W. Garland, Inc., 28 B.R. 87 (Bankr.E.D.Mo.1983). We see no reason why the Mindy’s rationale should not apply to rental debts incurred under an equipment lease agreement. The 1980 lease" }, { "docid": "7868191", "title": "", "text": "FLOYD R. GIBSON, Senior Circuit Judge. First National Bank in St. Louis (Bank) appeals from an order of the bankruptcy court, 12 B.R. 597, which denied the Bank’s motion to amend an order directing the return of funds received by the Bank because such funds constituted a preference under the Bankruptcy Act. A panel of this Court affirmed the judgment, one judge dissenting. 676 F.2d 1220. Rehearing en banc was granted, and the case was reargued. We now reverse. I. Facts Debtor-appellee Iowa Premium Service Co. (IPSCO), a premium finance company, borrowed $400,000.00 from appellant Bank and in exchange executed a promissory note on November 13,1979, payable to the Bank. The interest was to be calculated daily at a rate that could fluctuate (prime + V/4%) and paid monthly. The note was subject to payment on demand and subject to prepayment. The note by its terms matured on July 31,1980. IPSCO regularly made interest payments pursuant to the agreement, including the payments at issue here. The payments at issue were made by IPSCO in the first half of the month in May, June, and July, 1980, for the interest which accrued in each of the preceding months. Shortly after IPSCO made the payment in July for the June interest the Bank learned of IPSCO’s insolvency. On July 31, 1980, IPSCO filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code. 11 U.S.C. §§ 1101-1174, (Supp. Ill 1979). IPSCO as debtor-in-possession sought the return of the last three interest payments arguing they were preferential transfers because they were made within ninety days before the date of the filing of the petition of bankruptcy. Id. at § 547(b)(4)(A). The Bank argued that the payments fell within an exception to the preferential transfer section in § 547(c)(2) for payments made in the ordinary course of business and made not later than forty-five days after the debt was incurred. The parties stipulated that the payments were made in the ordinary course of business, so the only issue was whether the payments were made within forty-five days after the debt was incurred." }, { "docid": "22144545", "title": "", "text": "are present, but element (B) is not. Subsection (B) requires that payment be made within 45 days after the debt was incurred. Since BancOhio must have received the car payments within this required time to qualify for the exception, it is crucial to determine exactly when the 45 day period began and ended. To determine these important dates the Court must interpret the intent of Congress in the use of the phrase “45 days after such debt was incurred.” If Congress intended this phrase to apply to installment loan contracts so that a debt is considered to be “incurred” anew every month when the installment becomes due, the payments to BancOhio could not have been preferences, since the debtor makes each payment within 45 days of its due date. However, if Congress intended the phrase to refer only to the date on which the debtor originally assumes a legal obligation to pay, the payments to BancOhio were indeed preferences, since the 45 days had expired long before the payments were made. The Court finds that the latter interpretation of section 547(c)(2) correctly reflects the intent of Congress. Collier on Bankruptcy supports this view and states that a debt is “incurred” only once and that the 45-day period runs from the time the obligation to pay becomes legally binding. Paragraph 547.38 provides as follows: The issue of when a debt is “incurred” is not trivial. One view is that the debt is not incurred until an invoice is sent or demand for payment is made. The better view is that the debt is incurred when even the debtor obtains a property interest in the consideration exchanged giving rise to the debt. 4 Collier on Bankruptcy, Section 547.38 (15th ed. 1979). Mr. Richard B. Levin, a member of the House Judiciary Committee Staff which drafted the Code also concurs in this interpretation of section 547(c)(2)(B). In his article “An Introduction to the Trustee’s Avoiding Powers” 53 Am. Bankr. L.J. 173 (Spring 1979) Mr. Levin states as follows: The second exception to the preference section insulates ordinary trade credit transactions that are kept" }, { "docid": "10164762", "title": "", "text": "current.” Levin, An Introduction to the Trustee’s Avoiding Powers, 53 Am. Bankr.L.J. 173, 186 (1979). Levin explains that the 45-day limit was chosen because it reflected a normal trade cycle. Id. The Court finds these descriptions of the purpose and history of the ordinary course exception persuasive and agrees with the Court of Appeals for the Seventh Circuit that the exception was not intended for credit transactions which will remain unpaid for a long time. Barash v. Public Finance Corp., 658 F.2d 504 (7th Cir.1981). See also, In re Goodman Industries, Inc., 21 B.R. 512, 522-23 (Bkrtcy.D.Mass.1982); In re McCormick, 5 B.R. 726 (Bkrtcy.N.D. Ohio 1980); In re Bowen, 3 B.R. 617, 619 (Bkrtcy.E.D.Tenn.1980). The Barash case involved installment payments on consumer credit transactions, which are highly similar to the long-term loans at issue here. Defendants rely on In re Iowa Premium Service Co., Inc., 695 F.2d 1109 (8th Cir.1982), in which a divided en banc Court held that interest payments, as distinguished from principal payments, on a long-term bank loan are subject to exception under section 547(c)(2). In that case the Court distinguished Barash, finding that the Court had not addressed the question of interest payments as separate from principal payments. The Court in Iowa Premium Service accepted the Barash court’s interpretation of section 547(c)(2) to the extent that it held that a debt is incurred on the date when the debtor first becomes legally bound to pay. The court then found that the debt for interest payments where interest was due monthly was incurred on a monthly basis because the debtor had no obligation to pay the interest when the note arose but, instead, only became obligated to pay as it used the money. Because the debt for interest was incurred each month, on a continuing basis, the court found that the monthly interest payments had been made within 45 days of the date the debt was incurred and were subject to the exception. This Court thinks that the Iowa Premium court has taken a rather artificial and unnecessarily limited view of what occurs when a long-term loan" }, { "docid": "7868194", "title": "", "text": "if the payments were made according to schedule. The amount of interest IPSCO was obligated to pay was not reduced to a sum certain as of the date of execution of the note and this would be the case even if the interest rate did not fluctuate. A fixed obligation arose only after each day IPSCO retained the use of the money. IPSCO’s argument is that the debt for the interest was incurred on the date of execution even though an action would not lie to collect the interest at that time. The Bankruptcy Act does not define when a debt is incurred. It does define “debt” as “liability on a claim.” 11 U.S.C. § 101(11) (Supp. Ill 1979). The Act defines a “claim” as a: (A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecured[.] Id. at § 101(4). The House and Senate reports on the Bankruptcy Act say that the terms “debt” and “claim” are coextensive. S.Rep. No. 989, 95th Cong., 2d Sess. 23, reprinted in 1978 U.S.Code Cong. & Ad. News 5787, 5809; H.R.Rep. No. 595, 95th Cong., 1st Sess. 310, reprinted in 1978 U.S. Code Cong. & Ad.News 5963, 6267 [hereinafter House Report], These provisions leave unanswered the question of when the debt is “incurred.” However, bankruptcy case law indicates that an interest debt is not incurred until the interest accrues. Cases interpreting § 547(c)(2) hold that a debt is incurred on the date upon which the debtor first becomes legally bound to pay, a conclusion with which we agree. Barash v. Public Finance Corp., 658 F.2d 504, 512 (7th Cir.1981); In re Ken Gardner Ford Safes, Inc., 10 B.R. 632, 647 (Bkrtcy.E.D.Tenn.1981); In re McCormick, 5 B.R. 726, 731 (Bkrtcy.N.D.Ohio 1980). There can be no doubt" } ]

[ { "docid": "16475881", "title": "", "text": "actions differ. All are Class Members in MDL 551. The Classes, and the scope of claimants, coincide. This situation differs, therefore, from that in National Super Spuds, Inc. v. New York Mercantile Exchange, 660 F.2d 9 (2d Cir.1981), where the reviewing court proscribed a settlement in which claims held by a portion of the class were to be settled for no consideration. The Court will not conclude that counsel in MDL 551 lacked authority to negotiate settlement of the Class claims against the State of Washington, regardless of where those claims reposed. The law does not dictate a contrary conclusion. Hoffer counsel also contend that this Court lacks jurisdiction over the State and that it cannot, therefore, approve a settlement that releases claims not before it for adjudication. Counsel for the State of Washington, however, have taken part in settlement negotiations, entered into the Consolidated Settlement Agreement, prepared and submitted to this Court memo-randa in support of its participation in this Consolidated Settlement, and appeared before this Court to urge and defend the Court’s approval of the settlement. Through the Consolidated Settlement Agreement they seek entry of this Court’s Order of approval. These actions unequivocally indicate the State’s consent to this federal court’s jurisdiction over this aspect of its litigation. Thus, insofar as the Court’s approval of the settlement agreement between the Class Plaintiffs and the State of Washington is concerned, and despite the Court’s lack of power otherwise to adjudicate these claims, a limited waiver of the State’s Eleventh Amendment immunity is deemed to have occurred in the context of this litigation. See TBK Partners, Ltd. v. Western Union Corp., 517 F.Supp. 380, 388 (S.D.N.Y.1981), aff'd, 675 F.2d 456 (2d Cir.1982). A third objection raised by Hoffer counsel involves the charge that the MDL counsels’ presentation of this Consolidated Settlement Agreement violates principles of comity. This Court has been presented with an agreement that, through counsel properly before the court, proposes resolution of claims of persons, also properly before the Court, that are pending elsewhere. Counsel for these same Plaintiffs in a separate action resist these efforts. Plaintiffs cannot" } ]

[ { "docid": "22279022", "title": "", "text": "by its own citizens in federal court is not absolute; a state may waive its immunity and consent to suit in federal court by giving an “unequivocal indication” that it consents to suit in federal court. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 and n. 1, 105 S.Ct. 3142, 3145 and n. 1, 87 L.Ed.2d 171 (1985); Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360-61, 39 L.Ed.2d 662 (1974). The United States District Court for the District of Kansas has expressly followed the district court’s lead and held that states may make limited waivers of their Eleventh Amendment immunity in the context of settlement proceedings. See In re the Department of Energy Stripper Well Exemption Litig., 763 F.Supp. 498, 504 (D.Kan.1991) (State of New Mexico had waived its Eleventh Amendment immunity only with respect to the settlement aspect of the litigation). With these principles in mind, we find no legal impediment to a state’s waiver of its Eleventh Amendment immunity for the limited purpose of taking part in the settlement proceedings despite otherwise interposing immunity. If we were to adopt a contrary conclusion, states could effectively be forced to refrain from participating in settlement negotiations for fear that they may thereby be waiving their Eleventh Amendment immunity, a result that is inconsistent with the strong judicial policy in favor of settlements. See, e.g., Officers for Justice, 688 F.2d at 625; In re Corrugated Container Antitrust Litig., 643 F.2d at 207. Accordingly, we reject the Hoffer Group’s contentions that the district court should not have approved the Consolidated Settlement because the State was not and could not have been a party to this action. We also reject the Hoffer Group’s contention that the district court’s approval of the release of the claims asserted against the State violates the Anti-Injunction Act, 28 U.S.C. § 2283. As we have noted above with respect to the appeals of the Heerey Group, the relitigation exception to the Anti-Injunction Act allows a federal court to enjoin a state court proceeding to protect or effectuate its judgment. Nor is the district court’s" }, { "docid": "20460613", "title": "", "text": "the one before us. Congress decided as much when it wrote the RCRA and CWA to authorize citizen suits in federal courts. When “the matter is not one peculiarly within the agency’s area of expertise, but is one which the courts or jury are equally well-suited to determine, the court must not abdicate its responsibility.” MCI Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1104 (3d Cir.1995) (quoting Elkin v. Bell Tel. Co. of Pa., 491 Pa. 123, 420 A.2d 371, 377 (1980)). The second factor, whether the matter is particularly within the discretion of the agency, also weighs against applying primary jurisdiction. Although NJDEP generally has discretion over environmental matters, neither the RCRA nor the CWA charges NJDEP with enforcing those particular statutes. Indeed, each statute authorizes federal courts to address environ mental issues. Accordingly, this matter is not particularly within the discretion of NJDEP. Third, there is minimal risk of inconsistent rulings. NJDEP’s most recent comment concerning the remediation of river sediments came in 2004, when the agency notified NL that the company need not conduct any further investigation or remediation efforts at that time and stated that a “regional approach” should govern remediation of the Raritan River. (A. 117.) Since then, NJDEP has not issued any rulings on the matter. In light of agency inaction with respect to the river sediments over the last several years, we see little danger of a court-ordered remediation conflicting with NJDEP directives. Moreover, in the event the District Court orders remediation that imposes an additional burden on NL, “a more stringent remediation standard ... is not a reason to invoke the primary jurisdiction doctrine.” Interfaith Cmty. Org. Inc. v. PPG Indus., 702 F.Supp.2d 295, 312 (D.N.J. 2010) (“PPG Industries ”). The final factor, whether application to the agency has already been made, favors NL because NJDEP has previously considered contamination of sediments in the Raritan River. The agency, however, last spoke on the issue in 2004, and no action has been taken since. Accordingly, this single factor cannot outweigh the others that disfavor abstention on primary jurisdiction grounds. NL relies on" }, { "docid": "18636934", "title": "", "text": "51 acre parcel owned by Loveladies, which in turn is part of an original 250 acre tract which Loveladies had acquired in 1958. The balance of the 250 acres — 199 acres — had been developed before 1972 and the enactment of § 404 of the Clean Water Act. In order to develop the remaining 51 acre parcel for residential use, Loveladies needed to fill 50 acres, the one acre having been previously filled, and that in turn .required Loveladies to obtain permission from both the New Jersey Department of Environmental Protection (NJDEP) and the Corps. That process proved to be lengthy and contentious, marked by several years of negotiation (with Loveladies submitting progressively less ambitious and less environmentally objectionable proposals), a 1977 permit denial, appeal of that denial to the Commissioner of NJDEP, and judicial review in state court. During the course of the proceedings, NJDEP offered, as a compromise, permission for Loveladies to develop. 12.5 of the 51 acres. Loveladies initially declined that offer. Eventually Loveladies acquiesced to the 12.5 acre limitation, the dispute was resolved, and the permit, on September 9, 1981, issued. See In re Loveladies Harbor, Inc., 176 N.J.Super. 69, 422 A.2d 107 (App.Div.1980), certif. denied 85 N.J. 501, 427 A.2d 588 (1981). The permit granted permission to fill and develop 11.5 acres in addition to the one acre which had been filled previously — this is the 12.5 acre parcel at issue — and to construct 35 single family homes thereon. Loveladies then sought the requisite federal permit for the development project. As required, the Corps sought the views of the counterpart state agency, the NJDEP. NJDEP in its response acknowledged that they had issued Loveladies the permit as they were obligated to do under the terms of the settlement, but denied that the permit approval was in compliance with the state’s requirements. The response went on to explain that the 12.5 acre development would be “anachronistic,” a “throwback to the 1950’s — 1960’s style of shore development,” and closed by noting, “[a] denial of the federal permit appears appropriate under this Division’s understanding" }, { "docid": "3242123", "title": "", "text": "make regular payments into an escrow fund, the amounts of which are subject to adjustment as market conditions change. Once the settlement agreement was finalized through a consent decree, Colorado became entitled to a share (about 1.37%) of these funds. The complaint estimates Colorado’s share over the next 25 years at about $2.6 billion. Wilfred Harris is a recipient of Colorado’s Medicaid program who has been treated for smoking-related illnesses. He filed this action under 42 U.S.C. § 1983, alleging that (1) he assigned his right to sue the tobacco companies to Colorado; (2) Colorado settled his individual claims against the tobacco companies in its broad release in the Master Settlement Agreement; (3) part of the settlement funds therefore are subject to the distribution requirements of § 1396k(b); and consequently (4) he is entitled to some portion of the funds once the state reimburses itself for its Medicaid expenses. The complaint asked for declaratory and injunctive relief against Governor Bill Owens and Jim Riz-zuto, Executive Director of the Colorado Department of Health Care Policy and Financing. In particular, Harris sought to enjoin Defendants from depositing the settlement funds into the state treasury until entitlement to the funds was resolved. Defendants moved to dismiss for lack of subject-matter jurisdiction due to Eleventh Amendment sovereign immunity and failure to state a claim upon which relief can be granted. A magistrate judge recommended dismissing on both grounds. Over Harris’s objection, the district court dismissed the case on both grounds. Similar cases have been filed in at least twenty-five other states. Twelve of these states have joined an amicus brief filed in this case. Virtually every court, state or federal, that has considered one of these cases has dismissed it either because of sovereign immunity or because the Master Settlement Agreement was not a Medicaid settlement subject to § 1396k(b). E.g., Watson v. Texas, 261 F.3d 436 (5th Cir.2001) (merits); Floyd v. Thompson, 227 F.3d 1029 (7th Cir.2000) (merits); Cardenas v. Anzai, 128 F.Supp.2d 704 (D.Haw.2001) (Eleventh Amendment); Strawser v. Lawton, 126 F.Supp.2d 994 (S.D.W.Va.2001) (merits); Skillings v. Illinois, 121 F.Supp.2d 1235 (C.D.Ill.2000) (merits);" }, { "docid": "20460612", "title": "", "text": "its views. United States v. W. Pac. R.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). While “[n]o fixed formula exists for applying the doctrine of primary jurisdiction,” id., the parties and the District Court have relied on a four-factor test for determining whether a court should abstain on primary jurisdiction grounds. Those factors are: (1) Whether the question at issue is within the conventional experience of judges or whether it involves technical or policy considerations within the agency’s particular field of expertise; (2) Whether the question at issue is particularly within the agency’s discretion; (3) Whether there exists a substantial danger of inconsistent rulings; and (4) Whether a prior application to the agency has been made. Global Naps, Inc. v. Bell Atl-N.J., 287 F.Supp.2d 532, 549 (D.N.J.2003). These factors weigh against the application of primary jurisdiction. The first factor focuses on the competence of the court and the agency to address the matter. While NJDEP has expertise in environmental matters, federal courts are nonetheless competent to decide cases such as the one before us. Congress decided as much when it wrote the RCRA and CWA to authorize citizen suits in federal courts. When “the matter is not one peculiarly within the agency’s area of expertise, but is one which the courts or jury are equally well-suited to determine, the court must not abdicate its responsibility.” MCI Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1104 (3d Cir.1995) (quoting Elkin v. Bell Tel. Co. of Pa., 491 Pa. 123, 420 A.2d 371, 377 (1980)). The second factor, whether the matter is particularly within the discretion of the agency, also weighs against applying primary jurisdiction. Although NJDEP generally has discretion over environmental matters, neither the RCRA nor the CWA charges NJDEP with enforcing those particular statutes. Indeed, each statute authorizes federal courts to address environ mental issues. Accordingly, this matter is not particularly within the discretion of NJDEP. Third, there is minimal risk of inconsistent rulings. NJDEP’s most recent comment concerning the remediation of river sediments came in 2004, when the agency notified NL that the company" }, { "docid": "148047", "title": "", "text": "court’s stamp of approval will not immunize private anti-competitive agreements; genuine petitioning is necessary for Noerr-Pennington immunity to apply”); Cipro, 261 F.Supp.2d at 212-13 (ruling that a consent judgment certifying agreements between a brand-name drug manufacturer and manufacturers of generic drugs to delay market competition and extinguish all patent litigation claims was not subject to Noerr-Pennington protection because the judge in the case “played no role other than signing the Consent Judgment,” id. at 212, and “was ... [not] even apprised of the terms before he ‘so ordered’ the Consent Judgment,” id. at 213, and because “[t]he Consent Judgment did not include the terms of the. agreements,” id. at 212-13). The First Circuit has itself suggested that it is aware of the meaningful difference between action that is truly governmental in substance and action that is simply governmental in form. See George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25, 33 n. 8 (1st Cir.1970) (“An anti-competitive practice may receive only the most cursory inspection by public officials, or public officials may approve conduct without consideration or awareness of its anti-competitive aspects. The issue in such cases is not whether the action was in form ‘governmental’, but whether the real decision makers were public officials or private businessmen.” (citations omitted)). Having reviewed the record made available by the parties, it is not apparent that the New Jersey District Court actually played an independent role in drafting the terms in the consent judgments. Although AstraZeneca asserts that the New Jersey District Court exercised its discretion in enjoining the Generic Defendants from entering the market, AstraZeneca’s Mem. 6-8, the underlying settlement agreements are heavily redacted, see AstraZeneca/Ranbaxy Settlement Agreement; AstraZeneca/Teva Settlement Agreement; AstraZeneca/Dr. Reddy’s Settlement Agreement, so it is unclear how much of the content found within the consent judgments is properly attributable to the New Jersey District Court judge’s deliberation. Moreover, the entering of a consent decree does not, by itself, reflect a court’s assent to the substantive terms found therein, see, e.g., Liu v. Amerco, 677 F.3d 489, 497 (1st Cir.2012) (noting that “[a] consent decree" }, { "docid": "22279021", "title": "", "text": "these contentions based on its conclusion that the State had made a limited waiver of immunity for the purpose of the settlement proceedings. In pertinent part, the district court held that: Counsel for the State of Washington ... have taken part in settlement negotiations, entered into the Consolidated Settlement agreement, prepared and submitted to this Court memoranda in support of its participation in this Consolidated Settlement, and appeared before this Court to urge and defend the Court’s approval of the settlement.... These actions unequivocally indicate the State’s consent to this federal court’s jurisdiction over this aspect of its litigation. Thus, insofar as the Court’s approval of the settlement agreement between the Class Plaintiffs and the State of Washington is concerned, and despite the Court’s lack of power otherwise to adjudicate these claims, a limited waiver of the State’s Eleventh Amendment immunity is deemed to have occurred in the context of this litigation. In re Washington Public Power, 720 F.Supp. at 1413-14. We agree with the district court. The Eleventh Amendment’s bar to actions against states by its own citizens in federal court is not absolute; a state may waive its immunity and consent to suit in federal court by giving an “unequivocal indication” that it consents to suit in federal court. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 and n. 1, 105 S.Ct. 3142, 3145 and n. 1, 87 L.Ed.2d 171 (1985); Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360-61, 39 L.Ed.2d 662 (1974). The United States District Court for the District of Kansas has expressly followed the district court’s lead and held that states may make limited waivers of their Eleventh Amendment immunity in the context of settlement proceedings. See In re the Department of Energy Stripper Well Exemption Litig., 763 F.Supp. 498, 504 (D.Kan.1991) (State of New Mexico had waived its Eleventh Amendment immunity only with respect to the settlement aspect of the litigation). With these principles in mind, we find no legal impediment to a state’s waiver of its Eleventh Amendment immunity for the limited purpose of taking part in the settlement" }, { "docid": "23365258", "title": "", "text": "at 241, 105 S.Ct. 3142 (“Although a state’s general waiver of immunity may subject it to suit in state court, it is not enough to waive Eleventh Amendment immunity absent a clear intention to subject itself to suit in federal court.”); Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)(a waiver of Eleventh Amendment immunity will be found only when stated by the “most expressive language” or by such “overwhelming implications” as will leave no room for doubt); V-l Oil Co. v. Utah St. Dept. of Pub. Safety, 131 F.3d 1415, 1421 (10th Cir.1997); Amisub (PSL), Inc. v. Colorado Dept. of Soc. Servs., 879 F.2d 789, 792 (10th Cir.1989), cert. denied, 496 U.S. 935, 110 S.Ct. 3212, 110 L.Ed.2d 660 (1990). Moreover, the fact that the defendants here entered into a settlement agreement with Ellis does not act as a waiver of the defendants’ constitutionally protected immunity because the settlement agreement does not itself indicate, nor does the record otherwise reflect, an unequivocal intent to waive the immunity by the agreement. See Johns v. Stewart, 57 F.3d 1544, 1554 (10th Cir.1995)(because constructive consent is insufficient, state’s partial settlement does not constitute a waiver of Eleventh Amendment immunity in absence of unequivocal expression of a waiver); see also Saahir v. Estelle, 47 F.3d 758 (5th Cir.11995)(state’s participation in settlement agreement not sufficient to waive its sovereign immunity). Second, a State may have its Eleventh Amendment immunity abrogated by Congress if such abrogation was accomplished pursuant to a valid exercise of power by Congress. The Court in Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), held that Congress may not abrogate a State’s Eleventh Amendment immunity by an exercise of power under the Indian Commerce Clause of Article I. Id. at 72-73, 116 S.Ct. 1114 (“The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.”). However, Seminole Tribe recognized that Congress has the constitutionally permitted power to abrogate a State’s Eleventh Amendment immunity in" }, { "docid": "9379169", "title": "", "text": "In addition, the allocations to Clairol and the other parties in the earlier Phase I, $5,625 million settlement provided a “benchmark” for the amounts requested from potential settlors in the later consent decrees. Davis II, 11 F.Supp.2d at 191. 2. Consent Decrees II, III, IV and Capuano The remaining consent decrees included 27 additional parties and involved UTC’s settlement of claims for contribution from other PRPs, resulting in some additional payments to the United States pursuant to UTC’s agreement with the United States in Consent Decree I. In Consent Decree II, 23 parties paid a total of $4,135 million, with individual party liability detailed in briefs to the district court. Consent Decree III involved National Starch, which paid $5 million. Consent Decree IV involved a $150,000 payment by Swan Engraving and a $50,000 payment by Power Semiconductors. All parties to these settlements received complete contribution protection from future claims. Finally, Capuano Brothers paid $200,000 to the government, plus a like amount for settlement of cleanup costs at another Superfund site. 3. The District Court Approval To assist in its assessment of Consent Decree I, the district court held a two-day hearing to determine whether the proposed settlement was fair, both procedurally and substantively, reasonable, and consistent with CERCLA’s objectives. United States v. Cannons Eng’g Corp., 899 F.2d 79, 84 (1st Cir.1990). Procedurally, the court found that “[t]he negotiations were conducted openly and all parties were given an opportunity to participate.” Davis II, 11 F.Supp.2d at 189. Substantively, the court concluded that the consent decree met all requirements because the “proposed settlement reflects a rational method of allocating liability in a manner that reasonably approximates each party’s share of responsibility; the method is applied evenhandedly with respect to all PRP’s and sufficient information is presented to enable the Court to determine whether that has been done.” Id. at 192. In assessing the reasonableness of the consent decree, the court’s chief concern was “whether the public can be adequately compensated by a settlement in which the United States receives only a portion of the remediation cost from a party previously adjudged liable" }, { "docid": "23107727", "title": "", "text": "F.2d 448, 468 (2nd Cir.1974). A determination of whether a settlement is fair, adequate and reasonable requires an analysis of the risks and potential rewards of continued litigation compared to the actual benefits achieved by the proposed termination. The factors a court must consider include the complexity, expense and likely duration of the litigation, the stage of the proceedings and the amount of discovery completed, the opinions of the negotiating parties’ counsel, the arms-length nature of the negotiations and the reaction of parties opposing the settlement. See Reed v. General Motors Corp., 703 F.2d 170 (5th Cir.1983); Walsh v. Great Atlantic & Pacific Tea Co., Inc., 96 F.R.D. 632 (D.N.J.1983); Susquehanna Corp. v. Korholz, 84 F.R.D. 316 (D.I11. 1979). An assessment of these factors convinces the Court that the settlement agreement, taken as a whole, is fair, reasonable and adequate to all concerned parties. The agreement was reached after arms-length negotiations among a wide range of groups representing competing interests. The negotiations were extensive and hard-fought. The very fact that objections to the agreement were lodged in the record and later withdrawn attests to the process of compromise. Counsel entered into the negotiations well-versed in the merits of their clients’ claims. Although the Court has independently evaluated the proposed settlement, the professional judgment of counsel involved in the litigation — -who have made a determination that the settlement represents a fair allotment for their clients — is entitled to significant weight. Johnson v. Montgomery County Sheriffs Dept., 604 F.Supp. 1346 (D.Ala.1985); In re Baldwin-United Corp., 105 F.R.D. 475 (S.D.N.Y.1984). Moreover, that a government agency, which is committed to the protection of the public interest, has participated in the compromise negotiations and endorsed their results is a factor in favor of settlement approval. Marshall v.. Holiday Magic, Inc., 550 F.2d 1173 (9th Cir.1977); Jones v. Amalgamated Warbasse Houses, Inc., 97 F.R.D. 355 (E.D.N.Y.1983). The Department of Energy has participated extensively throughout the liability, damages and settlement phases of this complex and protracted litigation. Furthermore, pursuant to government procedures, the settlement agreement was scrutinized and approved by both the Department of Justice" }, { "docid": "23107728", "title": "", "text": "lodged in the record and later withdrawn attests to the process of compromise. Counsel entered into the negotiations well-versed in the merits of their clients’ claims. Although the Court has independently evaluated the proposed settlement, the professional judgment of counsel involved in the litigation — -who have made a determination that the settlement represents a fair allotment for their clients — is entitled to significant weight. Johnson v. Montgomery County Sheriffs Dept., 604 F.Supp. 1346 (D.Ala.1985); In re Baldwin-United Corp., 105 F.R.D. 475 (S.D.N.Y.1984). Moreover, that a government agency, which is committed to the protection of the public interest, has participated in the compromise negotiations and endorsed their results is a factor in favor of settlement approval. Marshall v.. Holiday Magic, Inc., 550 F.2d 1173 (9th Cir.1977); Jones v. Amalgamated Warbasse Houses, Inc., 97 F.R.D. 355 (E.D.N.Y.1983). The Department of Energy has participated extensively throughout the liability, damages and settlement phases of this complex and protracted litigation. Furthermore, pursuant to government procedures, the settlement agreement was scrutinized and approved by both the Department of Justice and the Office of Management and Budget (“OMB”). Finally, the near-unanimous support for the settlement agreement is a factor favoring approval by the Court. While a settlement stands or falls on its merits and not on a head count between its proponents and objectors, the overwhelming support for the settlement carries some persuasive force. The joint motion in support of the settlement agreement is signed by representatives of the DOE, the fifty-six States and Territories, over ninety-eight percent of the participants to the DOE entitlements program, the refiners, resellers, retailers, airlines, agricultural cooperatives, surface transporters and utilities. Equitably also the other major nonparties or intervenors who were primary industrial users of petroleum products during the price-control period, viz., the railroads, steamship lines and barge lines, have been included in the distribution contemplated by the settlement and have withdrawn their objections and joined the settlement. There is no opposition to the settlement agreement by any party to the litigation. The agreement provides substantial benefits for all parties and for the public, and it represents a fair" }, { "docid": "15486297", "title": "", "text": "Amendment immunity with respect to the settlement aspect of the litigation, i.e., the issue of who was entitled to the escrow fund and in what share. See In re Washington Public Power Supply System Securities Litigation, 720 F.Supp. 1379, 1413-14 (D.Ariz.1989) (motion to approve a class action settlement that also released claims asserted by plaintiff class against state in state court; the state of Washington’s participation in settlement negotiations, entry into a settlement agreement, the submission of pleadings and appearance before the court seeking approval of the settlement indicate the state’s consent to federal court jurisdiction over the settlement aspect of the litigation). The New Mexico Attorney General did not broadly waive the state’s Eleventh Amendment immunity by intervening. The court holds that the Eleventh Amendment is a bar to this action. The court notes that it recognized a common law cause of action for reimbursement or restitution in the Mobil v. Koch and Mobil v. Sun opinions. In re: Department of Energy Stripper Well Exemption Litigation, 743 F.Supp. 1467 (D.Kan.1990) (Mobil v. Koch); In re: Department of Energy Stripper Well Exemption Litigation, 743 F.Supp. 1476 (D.Kan.1990) (Mobil v. Sun). The fact that the court has recognized a cause of action for reimbursement is not determinative of the jurisdictional question. In its claims against Koch and Sun, Mobil alleged subject matter jurisdiction based on diversity of citizenship. Additionally, neither Koch nor Sun challenged subject matter jurisdiction, personal jurisdiction, or venue. See Mobil v. Koch, 743 F.Supp. at 1468; Mobil v. Sun, 743 F.Supp. at 1478. II. Pendent or Ancillary Jurisdiction The doctrine of pendent jurisdiction does not permit an evasion of the immunity guaranteed by the Eleventh Amendment. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 121, 104 S.Ct. 900, 919, 79 L.Ed.2d 67 (1984). While the court might have the discretion to exercise pendent jurisdiction over a state in conjunction with the determination of a federal claim, the Eleventh Amendment would bar an award of retroactive damage relief on that pendent claim as well as on the federal claim. Id. at 120-21, 104 S.Ct. at 918-19; see" }, { "docid": "23365257", "title": "", "text": "of Kansas. K.S. 76-711; Brennan v. University of Kan., 451 F.2d 1287 (10th Cir.1971). Two circumstances exist where a citizen may sue a State in federal court without running afoul of the Eleventh Amendment. First, a federal court may hear such suits if the State has expressly waived its Eleventh Amendment protection and consented to such suit in the federal courts. The test for determining whether a State has waived its Eleventh Amendment immunity “from federal-court jurisdiction is a stringent one” and in “the absence of an unequivocal waiver specifically applicable to federal-court jurisdiction,” we will not find that a State has waived its constitutional immunity. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). Though Kansas has generally authorized suits against any state educational institution brought in state court, K.S.A. § 76-713, Kansas has not expressly consented to suit in federal court and we cannot imply a waiver of Eleventh Amendment immunity into the statute. Brennan, 451 F.2d at 1289; see also Atascadero St. Hosp., 473 U.S. at 241, 105 S.Ct. 3142 (“Although a state’s general waiver of immunity may subject it to suit in state court, it is not enough to waive Eleventh Amendment immunity absent a clear intention to subject itself to suit in federal court.”); Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)(a waiver of Eleventh Amendment immunity will be found only when stated by the “most expressive language” or by such “overwhelming implications” as will leave no room for doubt); V-l Oil Co. v. Utah St. Dept. of Pub. Safety, 131 F.3d 1415, 1421 (10th Cir.1997); Amisub (PSL), Inc. v. Colorado Dept. of Soc. Servs., 879 F.2d 789, 792 (10th Cir.1989), cert. denied, 496 U.S. 935, 110 S.Ct. 3212, 110 L.Ed.2d 660 (1990). Moreover, the fact that the defendants here entered into a settlement agreement with Ellis does not act as a waiver of the defendants’ constitutionally protected immunity because the settlement agreement does not itself indicate, nor does the record otherwise reflect, an unequivocal intent to waive the immunity by the" }, { "docid": "7690673", "title": "", "text": "F.Supp. 1326, 1336 (E.D.Pa.1983)). More than one court has held that once the government proves that it incurred the costs for a particular site, tire burden shifts to the defendants to prove that the costs arose from actions that were inconsistent with the NCP. See, e.g., Hardage. . The government interprets duplicative costs to mean duplicate billing for the same item as opposed to billing for a procedure that may have been repeated because it was necessary to do so. . Indeed, one needs to travel only a few miles to the nearby GEMS Landfill Superfbnd Site to find a striking example of the relative efficiencies of a private cleanup. At GEMS, the construction of the Phase I remedy by the trustees of the settling parties has been completed for approximately one-half the projected cost of a governmentally-administered remediation. See generally NJDEP v. GEMS, Inc., 719 F.Supp. 325 (D.N.J.1989); NJDEP v. GEMS, Inc., 138 F.R.D. 421 (D.N.J.1991); NJDEP v. GEMS, Inc., 800 F.Supp. 1210 (D.N.J.1992); NJDEP v. GEMS, Inc., 821 F.Supp. 999 (D.N.J.1993); and NJDEP v. GEMS, Inc., 866 F.Supp. 826 (D.N.J.1994). . The defendants argue that the government does not have unlimited authority to incur and recover response costs. The defendants, for example, cite to sections of CERCLA which limit the decision to incur costs to the President and certain delegees, § 104, and state that Superfund money can only be used for particular, enumerated purposes, § 111. (Df. Mem. at 8). . The defendants suggest that this court can use the Federal Acquisition Regulations (\"FAR”) as measure for determining if the plaintiff’s costs were reasonable. Neither side has found any case law that requires the EPA to comply with the FAR when selecting and implementing a remedy under the NCP. In fact, the cases we found that addressed that issue did not reach that question. Because we find, as discussed infra, that EPA can recover response costs even if they are unreasonable, excessive, improper, du-plicative, and not cost-effective, we do not need to consider the application of the FAR, so long as the costs were incurred in a" }, { "docid": "18086691", "title": "", "text": "we must resolve is whether the state waived its immunity. Waiver of sovereign immunity must be knowing and voluntary, and the “test for determining whether a State has waived its immunity from federal jurisdiction is a stringent one.” Coll. Sav. Bank, 527 U.S. at 675, 119 S.Ct. 2219 (internal quotation marks omitted). The Supreme Court has found waiver when, for example, a state expressly consented by statute to suit in federal court, see Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 308-09, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990), and when it voluntarily invoked federal jurisdiction by filing suit in federal court, moving to intervene in federal-court litigation, or removing a case to federal court, see Lapides v. Bd. of Regents, 535 U.S. 613, 619-24, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). A state can likewise enter into a contract that waives its Eleventh Amendment immunity to suits related to the contract. See, e.g., Watson v. Texas, 261 F.3d 436, 442 (5th Cir.2001) (settlement agreement waived state’s immunity to suit by claimants to recover settlement proceeds); see also Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1195, 1195 n.11 (10th Cir.1998) (“Our conclusion [that the agreement at issue did not indicate the state’s intent to waive immunity] does not foreclose the possibility that a State may demonstrate an unequivocal intent to waive Eleventh Amendment immunity by participating in a settlement.”). When a statute or other document purportedly waives a state’s Eleventh Amendment immunity, we “will give effect to [the waiver] only where stated by the most express language or by such overwhelming implication from the text as will leave no room for any other reasonable construction.” Fee ney, 495 U.S. at 805, 110 S.Ct. 1868 (brackets and internal quotation marks omitted). Pettigrew contends that the Venue Provision of the Agreement is such a waiver. It states: “In the event that any litigation is commenced by either party to enforce the terms and conditions of the Agreement, the litigation will be brought in the appropriate Oklahoma court having jurisdiction, either state or federal....” Aplt.App., Vol. II at 76" }, { "docid": "22279020", "title": "", "text": "party to MDL 551, the Hoffer Group maintains that the MDL 551 Class Plaintiffs had no authority to enter into, and the district court had no jurisdiction to approve, a settlement agreement which purports to release the claims asserted against the State. Next, the Hoffer Group claims that the State could not have been a defendant in MDL 551 due to the bar of the Eleventh Amendment. The Hoffer Group contends that the district court’s approval of the Consolidated Settlement is flawed for the additional reason that the court had no power to release claims against a party over which it had no jurisdiction. Finally, the Hoffer Group challenges the district court’s finding that the State of Washington made a limited waiver of its Eleventh Amendment immunity in the context of the settlement proceedings. The Hoffer Group contends that once the State interposed its Eleventh Amendment immunity as it has done in MDL 551, it could not then selectively waive immunity for the limited purpose of extinguishing the state law claims. The district court rejected these contentions based on its conclusion that the State had made a limited waiver of immunity for the purpose of the settlement proceedings. In pertinent part, the district court held that: Counsel for the State of Washington ... have taken part in settlement negotiations, entered into the Consolidated Settlement agreement, prepared and submitted to this Court memoranda in support of its participation in this Consolidated Settlement, and appeared before this Court to urge and defend the Court’s approval of the settlement.... These actions unequivocally indicate the State’s consent to this federal court’s jurisdiction over this aspect of its litigation. Thus, insofar as the Court’s approval of the settlement agreement between the Class Plaintiffs and the State of Washington is concerned, and despite the Court’s lack of power otherwise to adjudicate these claims, a limited waiver of the State’s Eleventh Amendment immunity is deemed to have occurred in the context of this litigation. In re Washington Public Power, 720 F.Supp. at 1413-14. We agree with the district court. The Eleventh Amendment’s bar to actions against states" }, { "docid": "15486296", "title": "", "text": "a party, whether the same be an ordinary suit, scire facias proceedings, proceedings growing out of any criminal prosecution, or otherwise, shall have power to compromise or settle said suit or proceedings, or grant a release or enter satisfaction in whole or in part, of any claim or judgment in the name of the state or county, or dismiss the same, or take any other steps or proceedings therein which to him may appear proper and right; and all such civil suits and proceedings shall be entirely under the management and control of the said attorney general or district attorneys, and all compromises, releases and satisfactions heretofore made or entered into by said officers are hereby confirmed and ratified. Id. § 36-1-22. The state of New Mexico’s appearance in this case for purposes of claiming a portion of the escrow fund and its participation in the Final Settlement Agreement in which it received a portion of the escrow fund constituted only a limited waiver of the state’s Eleventh Amendment immunity. New Mexico waived its Eleventh Amendment immunity with respect to the settlement aspect of the litigation, i.e., the issue of who was entitled to the escrow fund and in what share. See In re Washington Public Power Supply System Securities Litigation, 720 F.Supp. 1379, 1413-14 (D.Ariz.1989) (motion to approve a class action settlement that also released claims asserted by plaintiff class against state in state court; the state of Washington’s participation in settlement negotiations, entry into a settlement agreement, the submission of pleadings and appearance before the court seeking approval of the settlement indicate the state’s consent to federal court jurisdiction over the settlement aspect of the litigation). The New Mexico Attorney General did not broadly waive the state’s Eleventh Amendment immunity by intervening. The court holds that the Eleventh Amendment is a bar to this action. The court notes that it recognized a common law cause of action for reimbursement or restitution in the Mobil v. Koch and Mobil v. Sun opinions. In re: Department of Energy Stripper Well Exemption Litigation, 743 F.Supp. 1467 (D.Kan.1990) (Mobil v. Koch); In" }, { "docid": "7690672", "title": "", "text": "with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foresee-ably result from such acts or omissions; or (4) any combination of the foregoing paragraphs. . We note that while CERCLA requires the NCP to assure cost effectiveness for remedial actions it does not make a similar requirement for removal actions. In the context of the present remedial cost recovery action, however, this distinction is of no moment. . In fact, the plaintiff claims that there are no procedural prerequisites to its cost recovery once it has established that it incurred the cost and that the cost was related to the site. Instead, the plaintiff argues that \"procedural requirements 'are intended to protect the integrity of the Superfund and not limit the government’s replenishing it by recovery from responsible parties.’ ” (Pl. Mem. at 10) (citing United States v. Wade, 577 F.Supp. 1326, 1336 (E.D.Pa.1983)). More than one court has held that once the government proves that it incurred the costs for a particular site, tire burden shifts to the defendants to prove that the costs arose from actions that were inconsistent with the NCP. See, e.g., Hardage. . The government interprets duplicative costs to mean duplicate billing for the same item as opposed to billing for a procedure that may have been repeated because it was necessary to do so. . Indeed, one needs to travel only a few miles to the nearby GEMS Landfill Superfbnd Site to find a striking example of the relative efficiencies of a private cleanup. At GEMS, the construction of the Phase I remedy by the trustees of the settling parties has been completed for approximately one-half the projected cost of a governmentally-administered remediation. See generally NJDEP v. GEMS, Inc., 719 F.Supp. 325 (D.N.J.1989); NJDEP v. GEMS, Inc., 138 F.R.D. 421 (D.N.J.1991); NJDEP v. GEMS, Inc., 800 F.Supp. 1210 (D.N.J.1992); NJDEP v. GEMS, Inc., 821 F.Supp. 999 (D.N.J.1993); and NJDEP" }, { "docid": "3242124", "title": "", "text": "Financing. In particular, Harris sought to enjoin Defendants from depositing the settlement funds into the state treasury until entitlement to the funds was resolved. Defendants moved to dismiss for lack of subject-matter jurisdiction due to Eleventh Amendment sovereign immunity and failure to state a claim upon which relief can be granted. A magistrate judge recommended dismissing on both grounds. Over Harris’s objection, the district court dismissed the case on both grounds. Similar cases have been filed in at least twenty-five other states. Twelve of these states have joined an amicus brief filed in this case. Virtually every court, state or federal, that has considered one of these cases has dismissed it either because of sovereign immunity or because the Master Settlement Agreement was not a Medicaid settlement subject to § 1396k(b). E.g., Watson v. Texas, 261 F.3d 436 (5th Cir.2001) (merits); Floyd v. Thompson, 227 F.3d 1029 (7th Cir.2000) (merits); Cardenas v. Anzai, 128 F.Supp.2d 704 (D.Haw.2001) (Eleventh Amendment); Strawser v. Lawton, 126 F.Supp.2d 994 (S.D.W.Va.2001) (merits); Skillings v. Illinois, 121 F.Supp.2d 1235 (C.D.Ill.2000) (merits); Martin v. New Mexico, 197 F.R.D. 694 (D.N.M.2000) (Eleventh Amendment); Barton v. Summers, 111 F.Supp.2d 989 (M.D.Tenn.2000) (Eleventh Amendment); State v. Superior Court, 83 Cal.App.4th 597, 99 Cal.Rptr.2d 735 (2000) (merits). The sole exception of which we are aware is Lewis v. State, No. LACV-037031 (Iowa Dist.Ct. July 21, 2000), an unreported decision denying Iowa’s motion to dismiss with little discussion. DISCUSSION A. Jurisdiction and Standard of Review Putting aside for a moment the Eleventh Amendment issue discussed below, the district court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s decision to dismiss this case on Eleventh Amendment grounds and for failure to state a claim. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999) (failure to state a claim); ANR Pipeline Co. v. Lafaver, 150 F.3d 1178, 1186 (10th Cir.1998) (Eleventh Amendment). On a motion to dismiss for failure to state a claim, we accept all well-pleaded allegations as true and view them" }, { "docid": "17069775", "title": "", "text": "Multistate Settlement Agreement imposes no restrictions on pricing or provisions to temper the effects of the output cartel. Under this set of facts, there is insufficient evidence of active supervision of the allegedly anticom-petitive restraints to satisfy this prong of Midcal. Although the Multistate Settlement Agreement is the product of a “clearly articulated” state policy, because the States do not “actively supervise” the anti-competitive restraints, the participants are not entitled to Parker immunity. 3. The question of Parker immunity’s applicability is a difficult one. As noted, we hold we must apply the Midcal test. Although the States satisfy Midcal’s “clear articulation” prong, they fail the second prong requiring them to actively supervise the anticompetitive restraints causing injury. Because private participants in state action enjoy Parker immunity only to the extent the States enjoy immunity, the defendants are not shielded by Parker, Therefore, consistent with the Supreme Court’s treatment of hybrid restraints, we hold defendants are not immune under the Parker immunity doctrine. IV. Constitutional Claims In its brief, and again at oral argument, plaintiffs asked us to find the Multistate Settlement Agreement unconstitutional under the Commerce Clause or the Compact Clause of the United States Constitution. But plaintiffs did not allege constitutional violations in their amended complaint, nor did the District Court address them. Therefore, these claims will not be addressed on appeal. Mahone v. Addicks Utility Dist., 886 F.2d 921, 935 (5th Cir. 1988) (“It is black-letter law that ‘[a] motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is to be evaluated only on the pleadings.’ ”) (quoting O’Quinn v. Manuel, 773 F.2d 605, 608 (5th Cir.1985)); N.A.M.I. v. Essex County Bd. of Freeholders, 91 F.Supp.2d 781, 787 n. 7 (D.N.J. 2000) (“This Court need not consider claims that have not been pleaded in the complaint.”); 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990). “ ‘Absent exceptional circumstances, an issue not raised in the district court will not be heard on appeal.’ ” Walton v. Mental Health Ass’n of Southeastern Pa., 168 F.3d 661," } ]

[ { "docid": "4213961", "title": "", "text": "& Co. v. United States, 196 U. S. 375, 395, 25 Sup. Ct. 276, 279 (49 L. Ed. 518), which was an action under the Sherman Anti-Trust Act, held: “Whatever may be thought concerning the proper construction of the statute, a bill in equity is not to be read and construed as an indictment would have been read and construed 100 years ago, but it is to be taken to moan what it iairly conveys to a dispassionate reader by a fairly exact use of the English speech.” Nor does the old rule, that “every intendment is against the pleader, and therefore the pleadings must be strictly construed against him,” govern the courts at this day; but, on the contrary, the courts now recognize the fact that it is of more importance to determine issues than pleadings, provided, of course, the facts alleged in the complaint entitle the plaintiff to the relief sought. The new equity rules, which in effect are similar to the Code procedure prevailing in most, of the states, are clearly intended to simplify pleadings and do away with many of the technicalities theretofore required. That under the Codes a demurrer upon mere technical grounds would not lie, but that the proper remedy is a motion to make the complaint more specific, is now well settled. 4 Standard Enc. of Procedure, 859; Bliss on Code Pleading (3d Ed.) § 425A; McAllister v. Kuhn, 96 U. S. 87, 24 L. Ed. 615; United States v. Parker, 120 U. S. 89, 94, 7 Sup. Ct. 454, 30 L. Ed. 601; Singers-Biggers v. Young, 166 Fed. 82, 91 C. C. A. 510; Locker v. American Tobacco Co. (D. C.) 194 Fed. 232; Phillips v. Jones, 79 Ark. 100, 104, 95 S. W. 164, 9 Ann. Cas. 131; Sanders v. Carpenter, 102 Ark. 187, 190, 143 S. W. 1091. Equity rule 20 (198 Fed. xxiv, 115 C. C. A. xxiv) offers the defendants an adequate remedy, if the allegations in the complaint are not specific enough to enable them to prepare their defense. Even under the old rule general certainty only" } ]

[ { "docid": "21032374", "title": "", "text": "the state court was authorized to ester its order, for substituted or constructive service of process; and that upon the service made pursuant to such order, the state court acquired jurisdiction of the subject-matter, and when the cause was removed to the United States District Court that court in turn acquired jurisdiction, and the merits of plaintiff’s suit, whatever they may be, whether dependent upon issues of law or issues of fact, or both, should be considered and determined by the court upon trial of the suit It remains to consider the action of the court in dismissing the bill on the motion of the resident defendants. The principal relief sought in the bill is against the nonresident defendants, and if no relief could be enforced against them, then, confessedly, none could be enforced against the resident defendants. The lower court, being of the view that it had not acquired jurisdiction to determine the substantial issues in the case, dismissed the bill as to the resident defendants as a matter of course. These parties were made defendants for the purpose of maintaining the status of the property and to render such property subject to any decree that might be entered. For reasons already stated, it would be inappropriate for us to assume to pass upon the question of the sufficiency of the facts stated in the bill of complaint to entitle plaintiff to the relief sought. As the case must be remanded for further proceedings, however, we think it proper to say, in the interest of an orderly and speedy disposition of the issues, that we are of the view that the case is not one which can satisfactorily be disposed of on motion to dismiss the bill for want of equity. As said by us in Winget v. Rockwood, 69 F.(2d) 326, 329: “A suit should not ordinarily be disposed of on such a motion unless it clearly appears from the allegations of the bill that it must ultimately, upon final hearing, be dismissed. To warrant such dismissal, it should appear from the allegations that a cause of action" }, { "docid": "7553602", "title": "", "text": "held for naught as a cloud upon the title of the complainant in and to said lands.” This relief is purely equitable in its nature, and is the only relief the complainants are entitled to under the facts stated. The general prayer does not aid to enlarge or broaden the relief sought beyond what the facts set up in the bill show the plaintiff has the right to ask. In determining whether the relief sought is of a nature that a federal District Court is competent to administer, on the motion now under consideration, this court will look to the face of the complaint, and, upon the facts as there set up, decide what relief should be granted the complainants. The bill is silent on the question of possession and mesne profits, and this court cannot be expected to anticipate evidence or amendments which will enlarge the scope of the prayer for general relief, so as to embrace all the legal and equitable remedies afforded by the Mississippi statute. The general prayer cannot broaden relief beyond the pleadings at this stage of the case. Simkins, A Federal Suit in Equity, p. 283. There is nothing in the bill to indicate that the complainants were seeking in a state court to avail themselves of blended remedies afforded by a state statute, which a federal court could not administer. The only specific relief asked is the cancellation of. two void or voidable deeds, and under the facts set forth this is the only relief which complainants are entitled to under the general prayer. Taking to be true every fact alleged, it does not appear that the complainants need, desire, or are entitled to any other or further relief than the delivery up and cancellation of void or voidable instruments, and a federal court of equity is as fully competent to administer this relief in a proper case as a Mississippi chancery court. The bill does not show a state of facts, as in Cates v. Allen, 149 U. S. 451, 13 Sup. Ct. 977, 37 L. Ed. 804, where the plaintiff, under" }, { "docid": "1576492", "title": "", "text": "be invalid if found to be an invention disclosed to the defendant by the plaintiff. But a statement of claim is not measured by the relief asked. If an adequate cause of action exists, the court may give the proper remedy regardless of the prayer of the complainant. If it should be found that disclosures were made which led directly to the Freeman patent, the court might, depending on the circumstances, determine the respective interests of parties, give effect to the contract existing between the parties when the disclosures were made, issue an injunction, or might find the patent invalid. The remedy granted would not necessarily be restricted to assignment. There is a prayer for general relief at the end of the complaint. “There is nothing in the intricacy of equity pleading that prevents the plaintiff from obtaining the relief under the general prayer, to which he may be entitled upon the facts plainly stated in the bill. There is no rfeason for denying his right to relief, if the plaintiff is otherwise entitled to it, simply because it is asked under the prayer for general relief and upon a somewhat different theory from that which is advanced under one of the special prayers.” Lockhart v. Leeds, 195 U.S. 427, 436, 25 S. Ct. 76, 79, 49 L.Ed. 263. “If a bill states a cause of action entitling complainant to equitable relief on any theory of the case, a court may grant it under a prayer for general relief, though other specific relief may be mistakenly prayed for.” Young & Vann Supply Co. v. Gulf, F. & A. Ry. Co., 5 Cir., 5 F.2d 421, 423. “The rule is now general that at a trial upon the merits the suitor shall have the relief appropriate to the facts that he has pleaded, whether he has prayed for it or not.”' Bemis Bro. Bag Co. v. United States, 289 U.S. 28, 34, 53 S.Ct. 454, 456, 77 L.Ed. 1011. “ * * * Except as to a party against whom a judgment is entered by default, every final judgment shall grant" }, { "docid": "7553601", "title": "", "text": "exerted upon the mind of one without mental capacity legally necessary to enable one to do it might be denominated an undue and improper influence is more a question of morality than of law, and might depend in large degree upon the motive of the actor and the ends to be subserved in obtaining the conveyance. If the pleader means to aver that because of undue and improper influences exerted upon the mind of the decedent he was rendered at the time of the execution of the deeds without sufficient mental capacity legally necessary to enable him to alienate the property, the character of the influences becomes highly important; but if the allegation of mental incapacity is absolute, and is intended to stand separate and alone, independent of undue influence, then this allegation, if established, would render the character of influences immaterial. I believe the same result should be reached, regardless of which construction is adopted. The remedy sought by the specific prayer of the bill is that the two deeds “be canceled, annulled, and held for naught as a cloud upon the title of the complainant in and to said lands.” This relief is purely equitable in its nature, and is the only relief the complainants are entitled to under the facts stated. The general prayer does not aid to enlarge or broaden the relief sought beyond what the facts set up in the bill show the plaintiff has the right to ask. In determining whether the relief sought is of a nature that a federal District Court is competent to administer, on the motion now under consideration, this court will look to the face of the complaint, and, upon the facts as there set up, decide what relief should be granted the complainants. The bill is silent on the question of possession and mesne profits, and this court cannot be expected to anticipate evidence or amendments which will enlarge the scope of the prayer for general relief, so as to embrace all the legal and equitable remedies afforded by the Mississippi statute. The general prayer cannot broaden relief" }, { "docid": "18939695", "title": "", "text": "that the plaintiff is entitled to relief and a demand for the relief to which he deems himself entitled. The purpose of the rule is to eliminate prolixity in pleading and to achieve breVity, simplicity, and ciarity. And all doubts or ambiguities concerning the meaning or intendment of the pleader’s language must be resolved in favor of the claim attempted to be stated when the complaint is attacked by a motion to dismiss the action. Clyde v. Broderick, 10 Cir., 144 F.2d 348. Rule 12(e) provides among other things that within twenty days after the service of a pleading upon him, a party may move for a more definite statement or for a bill of particulars in respect of any matter not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading or to prepare for trial. Indefiniteness of a complaint is not ground for dismissing the action if it- states a claim showing that the plaintiff is entitled to relief. And where the complaint states a claim in general language but is not sufficiently definite in certain respects to enable the defendant to answer or to prepare for trial, the remedy is to move for a more definite statement or for a bill of particulars. Clyde v. Broderick, supra. One ground of the motion to dismiss was that the complaint failed to identify the sales sufficiently to protect the defendants against future suits on the same cause of action by the individual customers in their own names and for their own benefit. The pleading was specific in respect of the dates of the sales, and it set forth item by item the commodities sold, the ceiling prices, the selling prices, and the overcharges. The pleading was sufficiently specific in these respects. The names of the purchasers were not set forth but it was pleaded that their names were unknown to the Administrator, and, therefore, a motion under Rule 12(e) to make the complaint more definite by setting forth such names or for a bill of particulars giving them would have been nothing less than" }, { "docid": "16626255", "title": "", "text": "hills of particulars and have asked specifically that the plaintiff be required to set out the time and the place that these conspiracies and combinations were made and the substance of the combinations, detailing what each of the defendants did that would bring the respective defendants into the conspiracy and combination. It is the contention of the plaintiff that all of the facts sought by the bills of particulars can be had upon discovery procedure after the issues are made up. There is a wide distinction between a bill of particulars under the rules of civil procedure as adopted in 1938 and a bill of particulars as contained under the old equity rules. A bill of particulars, under the rules of civil procedure, is in effect identical with a “more definite statement” and Rule 12(e), 28 U.S.C.A. following section 723c, provides that within twenty days after service of the pleading “a party may move for a more definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading or to prepare for trial. The motion shall point out the defects complained of and the details desired.” This rule has to do with the pleadings alone, and the purpose of the bill of particulars is to make the petition sufficiently definite to enable a defendant to know what he or it is alleged to have done. It is no defense, therefore, to a motion for a bill of particulars to say that the information which the defendants seek is within their knowledge. A demurrer or a motion to dismiss might be good as against a complaint and whether or not a complaint states a cause of action is to be determined by its contents and not by what the defendants may know. The complaint is the basis of the action and from it the court must determine whether or not a cause or causes of action are actually stated, Under Rule 34 provision is made for discovery, but Rule 34 has nothing to" }, { "docid": "18939694", "title": "", "text": "overcharges. The pleading contained a request that the overcharge as to each sale be treated as a separate cause of action as though set forth in a separate count or claim. The prayer was for damages in the sum of $3000 and for general relief. The defendants filed a motion to dismiss the amended complaint. The court sustained the motion and dismissed the action. The Administrator appealed. In considering a motion of this kind to dismiss a cause for failure of the complaint to state a claim upon which relief can be granted, every material fact well pleaded in the complaint construed in the light most favorable to plaintiff is admitted, and the legal question presented is whether the pleading construed in that manner states a cause of action on which plaintiff is entitled to recover. Galbreath v. Metropolitan Trust Company of California, 134 F.2d 569. Federal Rules of Civil Procedure, rule 8(a), 28 U.S.C.A. following section 723c, in presently material part requires that a complaint contain a.short and plain statement of the claim showing that the plaintiff is entitled to relief and a demand for the relief to which he deems himself entitled. The purpose of the rule is to eliminate prolixity in pleading and to achieve breVity, simplicity, and ciarity. And all doubts or ambiguities concerning the meaning or intendment of the pleader’s language must be resolved in favor of the claim attempted to be stated when the complaint is attacked by a motion to dismiss the action. Clyde v. Broderick, 10 Cir., 144 F.2d 348. Rule 12(e) provides among other things that within twenty days after the service of a pleading upon him, a party may move for a more definite statement or for a bill of particulars in respect of any matter not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading or to prepare for trial. Indefiniteness of a complaint is not ground for dismissing the action if it- states a claim showing that the plaintiff is entitled to relief. And where the complaint states a claim in general" }, { "docid": "18248158", "title": "", "text": "D.C., 26 F.Supp. 416; Peltz et al. v. Carolina Bagging Co., D.C., 1 F.R.D. 779; In re Eastern Bankers Corporation, D.C., 2 F.R.D. 489. In view of the nature and extent of .the litigation foreshadowed by the allegations of the complaint, plaintiffs should be required, within thirty days, to execute bond in the penal sum of $250 for the payment of such costs as may be adjudged against them in this action or, in lieu of such bond, they may deposit that amount in the Registry of the Court. An order will be entered accordingly. The defendants have also filed a motion, under Rule 12(e) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, seeking a more definite statement in respect to the nature of plaintiffs’ claims against them. The complaint seems to fulfill the requirements of Rule 8 in that it contains “a short and plain statement of the claim showing- that the pleader is entitled to relief” and each averment is “simple, concise, and direct”. The allegations of the complaint do not appear to be so vague or ambiguous as to preclude a fair understand ing of the general nature of plaintiffs’ claims or the relief which they seek. Unquestionably, however, in order to enable defendants to properly prepare their responsive pleading and to prepare for trial, they are entitled to the particular, detailed information which they seek. The only question is whether, under the applicable rules, this information should be secured by an amendment of the pleadings, as sought by this motion or the defendants should resort to one of the more simple and expeditious methods provided by Rules 26 to 37 of the Federal Rules of Civil Procedure. In Moore’s Federal Practice, 1942 Cumulative Supplement, page 641, it is said: ‘'To complicate pleadings unnecessarily by bills of particulars which merely constitute proof and evidence of essential facts defeats the salutary proposition of Rule 8 which requires the complaint to be short and the allegations to be simple, concise and direct. The framers of the Rules did not intend that compliance with Rule 8" }, { "docid": "5383692", "title": "", "text": "because it is enough to put the defendants on notice of the nature of the claims asserted — or most of them — the court will not dismiss the complaint on this ground. Nevertheless, defendants’ motion to dismiss the complaint under Rules 8 and 10 will be treated as a motion under Rule 12(e) for a more definite statement, and, as such, it is granted. As will be explained below, this suit will be stayed. Within 45 days after the entry of an order lifting the stay, Patterson must file either an explanatory statement, a list.of the specific acts each of the two defendants is alleged to have done, with each allegation in a separate numbered paragraph, or an amended complaint similarly setting forth this information. An amended complaint, but not an explanatory statement, may include additional defendants. If Patterson fails to do so, the original complaint will be stricken and the suit dismissed as provided in Rule 12(e). B. Elements of Patterson’s Claims Defendants take the position that the complaint does not set forth the elements of any claim. Federal pleading, of course, does not require that .the formal elements of a cause of action be set forth. A motion to dismiss should not be granted unless the court concludes that “no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). In deciding the motion, we must not only assume that the alleged facts are true, we must draw every reasonable inference in the plaintiffs favor. Bowman v. City of Franklin, 980 F.2d 1104, 1107 (7th Cir.1992). Nevertheless, “[T]he complaint must contain either direct allegations on every material point necessary to sustain a recovery on any legal theory, even though it may not be the theory suggested or intended by the pleader, or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.” Sutliff v. Donovan Companies, Inc., 727 F.2d 648, 654 (7th" }, { "docid": "18939693", "title": "", "text": "BRATTON, Circuit Judge. The Administrator, Office of Price Administration, instituted this action against John Karavas and James Karavas. It was alleged in the first amended complaint that the defendants were engaged in the operation of a restaurant in Taos, New Mexico; that they sold foods and beverages there; and that on or about August 20 and 21, 1945, they made sixty sales of meals, food items, and beverages at prices in excess of the maximum ceiling prices in force and effect at that time. The items ■sold, the ceiling prices, the selling prices .and the overcharges were set out separately, item by item. The names of the purchasers were not set out, and it was affirmatively alleged that they were unknown to the Administrator. It was further alleged that more than thirty days had elapsed since the occurrence of the overcharges; that the defendants had not refunded to the persons making the purchases any part of the overcharges; and that none of the persons had instituted any action against the defendants on account of the overcharges. The pleading contained a request that the overcharge as to each sale be treated as a separate cause of action as though set forth in a separate count or claim. The prayer was for damages in the sum of $3000 and for general relief. The defendants filed a motion to dismiss the amended complaint. The court sustained the motion and dismissed the action. The Administrator appealed. In considering a motion of this kind to dismiss a cause for failure of the complaint to state a claim upon which relief can be granted, every material fact well pleaded in the complaint construed in the light most favorable to plaintiff is admitted, and the legal question presented is whether the pleading construed in that manner states a cause of action on which plaintiff is entitled to recover. Galbreath v. Metropolitan Trust Company of California, 134 F.2d 569. Federal Rules of Civil Procedure, rule 8(a), 28 U.S.C.A. following section 723c, in presently material part requires that a complaint contain a.short and plain statement of the claim showing" }, { "docid": "23226381", "title": "", "text": "claim for a judgment declaring either the validity or the invalidity of said proxies, pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202. Nor will the fact that they have not, in express terms, demanded declaratory relief make any difference in this regard. It has long been established law that, in equity, a plaintiff is entitled to any relief appropriate to the facts alleged in the bill and supported by the evidence, even where he has not prayed for such relief. In Waterman v. CanalLouisiana Bank & Trust Co., 1909, 215 U.S. 33, 30 S.Ct. 10, 54 L.Ed. 80, this general rule was applied expressly to the case where a plaintiff demanded an accounting in his bill and was given a declaratory judgment instead although he had not sought declaratory relief Furthermore, Fed.R.Civ.P. 54(c) specifically provides: “(c) Demand for Judgment. * * Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” (Emphasis added.) And in recent years, the federal courts have given this rule the broad application that it seems to demand, both in actions at law and in equity. We have agreed implicitly to such broad interpretation in the Sixth Circuit. Accordingly, we have no difficulty in holding that these appellants may be entitled to declaratory relief under the facts alleged in their complaint. Therefore, the motion to dismiss for failure to state a claim upon which relief can be granted should be overruled at this stage of the proceedings. There remains now for disposition only two formal grounds upon which these appellees urge that the present complaint be dismissed. The first of these is that same does not comply with the mandatory requirements of Fed.R.Civ.P. 23 (a) and (b). Subsection (a) of that rule deals with the various types of class action, and appellees argue that if the present action is really a class action, as appellants assert, then appellants do" }, { "docid": "14658630", "title": "", "text": "10 through 23, Inclusive, and Paragraph 60 (Partial) of the First Amended Complaint and Paragraph 6 of the First Amended Complaint’s Prayer for Relief, which is currently before this Court. On May 19, 2000, TUC filed a Motion to Dismiss: (1) First and Second Causes of Action to the Extent Predicated upon Events which Occurred Outside the Applicable Limitations Period; (2) Third Cause of Action for Breach of Contract/Third Party Beneficiary in its Entirety; and (3) Fourth Cause of Action to Extent Restitutionary Relief is Sought on Behalf of the General Public, which is also currently before this Court. II. Discussion A. Standard 1. Motion to Strike Under FRCP 12(f), a party may move to strike “any redundant, immaterial, impertinent, or scandalous matter from the pleadings.” This includes striking “any part of the prayer for relief when damages sought are not recoverable as a matter of law.” Bureerong v. Uvawas, 922 F.Supp. 1450, 1459 n. 34 (C.D.Cal.1996). Motions to strike are generally viewed with disfavor and are not frequently granted. Pease & Curren Ref., Inc. v. Spectrolab, Inc., 744 F.Supp. 945, 947 (C.D.Cal.1990). Further, courts must view the pleadings under attack in the light more favorable to the pleader. California v. United States, 512 F.Supp. 36, 39 (N.D.Cal.1981). Motions to strike “are generally not granted unless it is clear that matter to be stricken could have no possible bearing on the subject matter of litigation.” LeDuc v. Kentucky Cent. Life Ins. Co., 814 F.Supp. 820, 830 (N.D.Cal.1992). Indeed, “a case should be tried on the proofs rather than the pleadings.” Rennie & Laughlin, Inc. v. Chrysler Corp., 242 F.2d 208, 213 (9th Cir.1957). 2. Motion to Dismiss In considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) the Court must assume that plaintiffs’ allegations are true, and must construe plaintiffs’ complaint in the light most favorable to plaintiffs. United States v. City of Redwood City, 640 F.2d 963, 967 (9th Cir.1981). Moreover, even if the face of the pleadings indicates that recovery is unlikely, the plaintiff is still entitled to offer evidence in support of the complaint. Scheuer v. Rhodes," }, { "docid": "2243940", "title": "", "text": "dismiss the bill for failure of proof, or grant such relief as, upon the-allegation and proof, the complainants show themselves entitled to. If, as alleged and admitted by the motion to dismiss, the managing officers, being also the majority shareholders, have conducted the affairs of the corporation, conveyed its property, made contracts, as alleged— committed other acts prejudicial to the interests of the complainants, minority stockholders — it would seem that a court of equity should take cognizance at least to the extent of investigating and ascertaining the truth in regard to the transactions set forth in bill. It may be that, upon full investigation, the defendants will be able to show that the plaintiffs are making a false clamor, and that they Jiave no ground for complaint. It appears that an answer was filed and depositions taken by defendants before the motion to dismiss was made. It would seem more in accordance with the course usually pursued by courts of equity that the cause should proceed to a hearing rather than at this stage of the proceeding a motion to dismiss allowed. We are of the opinion that there was error in holding that the bill did not allege' facts sufficient to entitle plaintiffs to invoke the jurisdiction of the court. It is said, however, that Edward D. Adams and George G. Adams are indispensable parties defendant, and that, if brought into the case as defendants, the jurisdiction o'f the court would be ousted. While, as provided by rule 29 (198 Fed. xxvi, 115 C. C. A. xxvi), the motion to dismiss may be made for nonjoinder of essential parties, the practice of courts suggest, not a decree dismissing the bill, but an order to malee such parties. It is insisted that this would not help' the complainants, because, as George E. Adams is a citizen and resident of Pennsylvania, the residence of complainants, upon being brought into the record, a case would be created wherein complainants and one of the defendants are citizens and residents of the same state. Rule 39 (198 Fed. xxix, 115 C. C. A." }, { "docid": "22198911", "title": "", "text": "Mr. Chief Justice Hughes delivered the opinion of the Court. This case presents a question of equity pleading in patent suits. The suit is for infringement and the question is as to the sufficiency of what is called the “short” bill of complaint. That is, the bill alleges the issue and ownership of certain patents, of which profert is made, compliance with all the requirements of the statute and rules of practice of the Patent Office, and infringement. The bill does not allege compliance with the requirements of R. S. 4886 and 4887 (35 U. S. C. 31, 32), that is, that the invention, of each of the patents in suit, was not known or used by others in this country before the inventor’s invention or discovery thereof, was not patented or described in any printed publication in this or any foreign country before his invention or discovery, or for more than two years prior to his application, and was not in public use or on sale in this country for more than two years prior to his application, that the invention had not been abandoned, and that no application for foreign patents had been filed more than twelve months prior to the filing of the application in this country. The defendant moved for dismissal of the bill of complaint upon the ground of insufficiency of fact to constitute a valid cause of action in equity. Equity Rule 29. The District Court granted the motion and directed dismissal subject to leave to amend and, amendment not having been made, a final decree was entered, which the Circuit Court of Appeals affirmed. 86 F. (2d) 77. Because of conflict of decisions in the Circuit Courts of Appeals, we granted certiorari. See Moeller v. Scranton Glass Co., C. C. A. 3d, 19 F. (2d) 14, sustaining the “short” bill, and Ingrassia v. A. C. W. Manufacturing Corp., C. C. A. 2d, 24 F. (2d) 703, to the contrary. Prior to the adoption of the Equity Rules in 1912, it was necessary for the plaintiff to allege not only that he was the" }, { "docid": "7069487", "title": "", "text": "decree in this cause. The other defaults, such as the use of unfit rolling stock, and general failure to give the stipulated service, are more serious, and cannot be covered by bond. They can be cured, if the -railways company does not furnish them, only by advances by complainant in aid of its security, or by receiver’s certificates duly issued for that purpose. I think the complainant’s general offer to do equity should be madle more specific, so that it cannot be misunderstood, and should be amended by a specific prayer that, in case forfeiture of the franchise should be contingently declared and the railways company should not perform the delinquent conditions, the bill be retained as a foreclosure bill, proceeding by virtue of the mortgage default which it would be then ascertained does now, in a substantial sense, exist; and that, in such cáse, unless the complainant furnish, or cause to be furnished, sufficient funds to permit and make possible the maintenance of the franchise, receiver’s certificates be issued for that purpose. It will not be necessary now to- incorporate in the bill all the formalities of a foreclosure bill, but only to make a sufficient basis for an amended or supplemental bill for that purpose and to commit the complainant to the position that it will either provide the necessary funds or cooperate in providing them through the means of receiver’s certificates. The three individual defendants have filed a demurrer on the ground that it is not proper to join them as individuals, I think the allegations of the bill make them proper parties, not so much for the sake of personal relief against them, as to have before the court the apparently responsible officials of the corporation, for the purpose of greater certainty in enforcing the decrees and orders to be made. Their demurrer will be overruled, but with the understanding that, unless their individual conduct appears to have been beyond! that indicated on the oral argument, no costs or damages will be awarded against them upon any final decree; and unless they, within 15 days, file" }, { "docid": "2243939", "title": "", "text": "of cases coming within the exception to the rule is stated by Mr. Justice Brandeis in United Copper Co. v. Amal. Copper Co., 244 U. S. 261, 37 Sup. Ct. 509, 61 L. Ed. 1119, as when the directors “stand in a dual relation which prevents an unprejudiced exercise of judgment,” or “that such application would be futile (as when the wrongdoers control the corporation)/’ The allegations in the bill, which, upon its motion, defendants admit to be true, bring the case clearly within the cases to which, as said by Mr. Justice McKenna, “the rule does not apply.” We are thus brought to consider the challenge made to the bill and sustained by the court — that it does not sustain facts sufficient to constitute a cause of action, or to entitle the complainants to seek any relief in a court of equity. It is true that the specific relief demanded is the appointment of a receiver; but the court is not compelled to grant the prayer, but may, upon the proofs adduced, either dismiss the bill for failure of proof, or grant such relief as, upon the-allegation and proof, the complainants show themselves entitled to. If, as alleged and admitted by the motion to dismiss, the managing officers, being also the majority shareholders, have conducted the affairs of the corporation, conveyed its property, made contracts, as alleged— committed other acts prejudicial to the interests of the complainants, minority stockholders — it would seem that a court of equity should take cognizance at least to the extent of investigating and ascertaining the truth in regard to the transactions set forth in bill. It may be that, upon full investigation, the defendants will be able to show that the plaintiffs are making a false clamor, and that they Jiave no ground for complaint. It appears that an answer was filed and depositions taken by defendants before the motion to dismiss was made. It would seem more in accordance with the course usually pursued by courts of equity that the cause should proceed to a hearing rather than at this stage" }, { "docid": "14032126", "title": "", "text": "Whether motions in the nature of special demurrers and directed against amendable error, and not against jurisdictional defects, can be made after answer filed (In re Mason, etc., Co. [D. C.] 235 Fed. 974; In re Connecticut Brass, etc., Co. [D. C.] 257 Fed. 445), is a matter not necessary to decision in this case. But that a defendant after entering upon the trial of an issue framed by his own answer can insist upon dismissal for a nonjurisdictional defect in his opponent’s pleading is a proposition that cannot be sustained. As was said in Leidigh v. Stengle, 95 Fed. 637, 37 C. C. A. 210, under any system of pleading a plea to the merits waives all formal or modal ¿natters. Cf. Green River, etc., Bank v. Craig (D. C.) 110 Fed. 137; In re Cliffe (D. C.) 94 Fed. 354. The absence of specifications or particulars in the petition here complained of was perhaps more than “modal”; but it was not jurisdictional, and was amendable, and therefore a.t no stage of the proceedings were the defending parties entitled to more than relief by amendment, and after trial begun, they were entitled to no other relief than such as would insure fairness in trying the issue made by themselves. ' Such fairness was fully secured by taking an adjournment and ordering a bill of particulars. Some objection is made to the effect that, since bankruptcy is equity, equity does not know a bill of particulars. This is merely wrong; in this circuit for many years bills of particulars in equity suits have been freely ordered and are common practice. No other error assigned is thought to require consideration. The decree of adjudication is affirmed, with costs." }, { "docid": "10833264", "title": "", "text": "NIELDS, District Judge. Plaintiff moves to dismiss its bill of complaint without prejudice. Defendant resists the motion because during the progress of the case (1) defendant has become entitled to affirmative relief; (2) defendant has filed an, answer containing a counterclaim praying such affirmative relief; and (3) by a decree entered in this ease eliminating the narrow issue of interfering patents defendant has ac quired the advantage of trying in this court the broader issues of an infringement suit. Plaintiff replies to the (2) defense that the counterclaim is ineffectual because filed after plaintiff’s motion to dismiss. Defendant rejoins that its counterclaim was filed in conformity with Equity Rule 16 (28 USCA § 723); that is, within the time for filing answer as enlarged by order of the court for cause shown. The issues thus presented can be tested by a consideration of the record step by step. March 7, 1932, plaintiff filed its bill of complaint for relief against interfering patents under section 4918, U. S. Rev. St. as amended by Act March 2, 1927 (35 USCA § 66), and also for patent infringement. March 29, 1932, within twenty days after service of subpoena, defendant Sweetland entered a special appearance and moved to dismiss the bill as to him. On the same day Motor Improvements, Inc., moved to dismiss that part of the bill based on section 4918. Thereupon the court entered an order that the time for filing an answer or other pleading by Motor Improvements, Inc., “be extended until twenty days after the entry of an order by the court” disposing of its motion to dismiss. The motions to dismiss the bill in sa far as it was founded on section 4918 were granted, and on November 21, 1932, a decree to that effect was entered. (D. C.) IE. Supp. 641. This decree eliminated Sweetland and the issue of interfering patents, and confined the issue to a straight infringement suit against Motor Improvements, Inc., as sole defendant. December 7, 1932, after notice to plaintiff, defendant moved to strike from the bill of complaint all impertinent allegations relating" }, { "docid": "3114070", "title": "", "text": "is insufficient to show who was served. No appearance was made, and on May 27, 1933, judgment was taken by default in favor of the United States for the penalty of the bond, the judgment ¡reciting due service. Execution was issued but not collected. On April 14, 1942, appellants filed a formal suit against the United States in which they prayed that the judgment be cancelled and annulled, and for general legal and equitable relief, the.grounds put forward being that there was in fact no liability on the bond and the judgment was entered by mistake and accident, that there was no service of citation upon either of them, and the Marshal’s return of service was insufficient on its face to support the judgment by default. The United States appeared'and moved to dismiss this suit on the ground that it was an original suit, and the Sovereign had not consented to be thus sued. This motion was sustained on the authority of Zegura v. United States, 5 Cir., 104 F.2d 34. The plaintiffs obtained leave of the Court to amend the suit into one against the Clerk of the Court and the Marshal, omitting the United States as a party. This was done, and the amended bill took the form of a bill in equity to remove the cloud of the judgment from the title to their property, averring the, absence of any remedy at law. The prayers were enlarged to ask the cancellation of the judgment and the removal of its cloud and also injunction against issuing or enforcing any writs of execution, garnishment or attachment based on the judgment. The Clerk and Marshal moved to dismiss because the United States was a necessary party to the grant of the relief prayed and not amenable to suit, and there was no cause of action alleged against themselves warranting the relief sought. The Court without deciding the motion to dismiss heard the case on an answer denying most of the allegations, and gave judgment for the defendants. The plaintiffs appeal. We think the, suit rightly failed, but that it should" }, { "docid": "22294301", "title": "", "text": "relief by a motion to dismiss on the ground that under, those laws, rightly construed and applied, the plaintiffs’ lease was invalid. That challengé was sustained by the District Court, but was overruled by the Circuit Court of Appeals on the first appeal. A simple amendment of the bill, conforming its jurisdictional allegations to the fact thus brought .into the record, would have corrected the defect and put in affirmative and definite form what apparently was intended in the beginning. . Had the defect been called to the court’s attention, leave to make the amendment could and doubtless would have been granted. Both parties proceeded as if the jurisdictional showing was sufficient; and both courts-below dealt with the suit as one arising under the:: laws before named and proceeded to its determination accordingly. The suit was begun in 1916; the parties had two hearings in each of the courts below; and the merits were exhaustively presented. In these circumstances to amend the bill now to conform to the jurisdictional'fact indisputably shown elsewhere in the record will not sub-. ject either party to any prejudice or disadvantage, but will subserve the, real interests of both. This Court has-power to allow amendments of this character. Rev. Stat. §954; Norton v. Larney, supra; Realty Holding Co. v. Donaldson, 268 U. S. 398, and the propriety of exercising it in this instance is obvious. We' therefore .shall treat the bill as amended, by our leave, to show the jurisdictional fact conformably to other parts of the record., With that fact brought into the bill, there can be- no doubt, that there -was federal jurisdiction. Hopkins v. Walker, 244 U. S. 486; Norton v. Larney, supra. The plaintiffs insist that, as the defendant did not appeal from the decree of the Circuit Court of Appeals on the first appeal, he is now precluded from questioning what was decided then. But the law and settled practice are otherwise. That decree was not final'but only interlocutory, and so was not appealable. Nor did the defendant acquiesce in it. On the contrary, he sought to have it reconsidered" } ]

[ { "docid": "6108610", "title": "", "text": "became more concerned as a result of the publicity that arose from an article published in a Georgia newspaper. The article made light of the fact that Duke had a female football player and caused Goldsmith to express a belated concern that Mercer’s presence on the team could be more harmful than helpful. Mercer v. Duke Univ., 181 F.Supp.2d 525, 531 (M.D.N.C.2001), vacated in part & remanded, 50 Fed.Appx. 643 (4th Cir.2002). Goldsmith’s treatment of Mercer thereafter took a turn for the worse. For example, Goldsmith refused to let Mercer participate in pre-season camp and he refused to let her dress for games or sit on the sidelines with the rest of the team. He made numerous comments that were offensive to her, such as telling her to sit in the stands with her boyfriend and asking her why she was interested in football instead of beauty pageants. Goldsmith eventually cut Mercer from the team, an action he had never taken with any male player. Mercer brought this action against Duke University, contending that Duke discriminated against her because of her sex, in violation of Title IX. See 20 U.S.C.A. § 1681(a) (West 2000) (“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance .... ”). The district court dismissed Mercer’s claim, concluding that, by virtue of a regulation creating an exemption for single-sex contact-sport teams, Title IX did not require Duke to give women an opportunity to play on the men’s football team. And because Duke was not required to give Mercer an opportunity to play, the district court concluded that Title IX did not prohibit Duke from changing its mind once it made Mercer a member of the team. See Mercer v. Duke Univ., 32 F.Supp.2d 836, 839-40 (M.D.N.C.1998). Mercer appealed that decision, and this court reversed and remanded for trial. We concluded that while the contact-sport exemption would have shielded Duke from liability had it refused to allow Mercer to" } ]

[ { "docid": "18256422", "title": "", "text": "during plaintiffs tenure, in the year leading up to plaintiffs dismissal, the opportunities for women wrestlers declined as a result of roster caps that were implemented to reduce costs and to balance the number of male and female varsity athletes at UCD. (Id. Ex. A (Warzecka Decl. ¶ 7)); PL’s SUF Exs. 20, 24 (UCD Wrestling Media Guides).) The wrestling team was officially capped at 30 and, either because the women could not beat any of the men for a spot or because defendants instructed plaintiff to remove women from the men’s team, the female wrestlers were not included on the 2000-01 roster. Plaintiff asserts that he found this situation distressing and that he repeatedly-challenged UCD’s efforts to phase out women’s wrestling. Specifically, plaintiff “tried to argue the point” when Warzecka “ordered the removal of the womén from the wrestling program- in October 2000.” (Defs.’ SUF Ex. HH (Pl.’s Resps. to Inter-rogs. of UCD-2d Set, No. 39).) When Warzecka threatened to terminate plaintiff in response, plaintiff “complied with the order under protest and wrote a memo to Defendants indicating that the women were removed from the program at [defendants’] request.” (Id.) Plaintiff also insists that he participated in the female wrestlers’ efforts to be reinstated. In January 2001, he “reminded ... Warzecka that the women wanted to be varsity” and further communicated that they wanted access to varsity benefits, including medical care. (Id. No. 40.) Plaintiff also states that he told Warzecka at this time that the women were “offended by Mr. Warzecka’s treatment of them .... ” (Id. (PL’s Resps. to Interrogs. of UCD-2d Set, No. 40).) Finally, plaintiff also spoke to Swanson “about these problems” around the same time. (Id.) On April 24, 2001, three female wrestlers filed a complaint with the Office for Civil Rights of the United States Department of Education (“OCR”) in which they alleged gender-based discrimination in violation of Title IX. (PL’s SUF No. 175, 175.) They also sent letters to Warzecka, Gill-Fisher, and Swanson on April 30, 2001 to inform them of the complaint. (Id. No. 175.) Within the first week of May," }, { "docid": "13448750", "title": "", "text": "and Tribes of Yakima Indian Nation, 439 U.S. 463, 478 n. 20, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979) (“[T]he prevailing party ... was of course free to defend its judgment on any ground properly raised below whether or not that ground was relied upon, rejected, or even considered by the District Court. ... ”) (emphasis added). As the district court has had no opportunity to rule on the individual defendants’ qualified immunity defense, we will not affirm on that basis. The dismissal of the students’ § 1983 claim is therefore reversed. Conclusion For the foregoing reasons, the plaintiffs’ motion to amend their complaint is dismissed as moot. The district court’s grant of summary judgment to the defendants on the Title IX claim is reversed. The district court’s order dismissing the equal protection § 1983 claim is also reversed, and the case is remanded for further proceedings consistent with this opinion. . Nancy Chiang, an additional plaintiff named in the complaint, was on a leave of absence from UCD when the complaint was filed. She dismissed her claims in June 2007. Mansourian, Ng, and Mancuso graduated from UCD during the course of the litigation. . UCD disputes the very existence of a women’s varsity wrestling program, insisting that the plaintiffs were merely \"permitted to practice with the wrestling team.\" UCD acknowledges, however, that the plaintiffs \"participated in wrestling” and that Mansourian, at least, was \"on the wrestling team roster” and received varsity-associated benefits. Moreover, UCD listed four female varsity wrestlers in its 1999-2000 athletics report pursuant to the Equity in Athletics Disclosure Act, 20 U.S.C. § 1092(g). Viewing the facts in favor of the plaintiffs on UCD's motion for summary judgment, we conclude that the plaintiffs were varsity wrestlers for purposes of Title IX. . OCR is the division of the United States Department of Education charged with enforcing Title IX. . The Title IX claims are asserted only against the university. The individual defendants are Larry Vanderhoef, University Chancellor; Greg Warzecka, Athletic Director; Pam Gill-Fisher and Lawrence Swanson, Associate Athletic Directors; and Robert Franks, Associate Vice Chancellor for Student" }, { "docid": "13448716", "title": "", "text": "in damages for failing effectively to accommodate the athletic interests of both men and women unless the aggrieved women first provide the appropriate university officials with notice of their disadvantageous treatment and an opportunity to cure it. We disagree and so, with respect to the central issue in this case, reverse the district court’s grant of summary judgment on that ground. We hold as well that the defendant university is not entitled to summary judgment on the alternative ground that it has complied with Title IX. We also reverse the order dismissing the plaintiffs’ equal protection claim and remand for further proceedings consistent with this opinion. Factual and Procedural Background Arezou Mansourian, Lauren Mancuso, and Christine Wing-Si Ng (hereafter plaintiffs or students) are women who wrestled in high school and chose to attend the University of California, Davis (UCD) so they could participate in the university’s acclaimed wrestling program, which had long provided opportunities for women. The plaintiffs participated in varsity wrestling and enjoyed the benefits associated with varsity status: training, coaching, and laundry services; academic tutoring; insurance; and access to varsity facilities and equipment. UCD did not operate separate wrestling teams for men and women; a handful of women wrestlers participated in what was largely a men’s team, practicing with the men and receiving coaching from Coach Mike Burch. During the 2000-2001 academic year, UCD eliminated all women from the wrestling team. After the students protested to UCD administrators and filed a complaint with the Office for Civil Rights (OCR), UCD agreed to permit women again to participate in varsity wrestling. Their participation, however, was conditioned on their ability to beat male wrestlers in their weight class, using men’s collegiate wrestling rules. (Prior to their elimination from the team, women wrestlers at UCD had competed only against other women and used international freestyle rules.) As a result of the new requirement that they compete against men under men’s rules, the female students were unable to participate on the wrestling team and lost the benefits associated with varsity status, including scholarships and academic credit. The students then filed a class" }, { "docid": "20126857", "title": "", "text": "former status as fully funded intercollegiate varsity teams and to provide these teams with all of the incidental benefits accorded varsity teams at the university. This case raises novel issues concerning Title IX and athletic programs. In addition, there is virtually no caselaw on point. For these reasons, I have undertaken to explore at great length the factual and legal context of this case, including a detailed examination of the U.S. Department of Education’s official Policy Interpretation of the athletic regulation promulgated under Title IX. First, I will discuss the varsity athletic program at Brown and the change in status of the four teams. Next, I will outline the legal and regulatory framework for athletic programs under Title IX. Finally, I will address the arguments advanced by both parties under the rubric of this Circuit’s well-established preliminary injunction framework, emphasizing what I believe to be the Title IX standards applicable to this case. II. Factual Background Brown is a member of Division I of the National Collegiate Athletic Association (“NCAA”), the highest level within the NCAA structure. In academic year 1990-91, Brown funded a total of 31 varsity teams through its athletic department that participated in NCAA and other intercollegiate competition. Of these 31 teams, 16 were for men and 15 were for women. In eleven sports, Brown offered teams for both sexes: Men and Women (1) Basketball (2) Crew (3) Cross-Country (4) Ice Hockey (5) Lacrosse (6) Soccer (7) Squash (8) Swimming (9) Tennis (10) Fall Track (11) Spring Track The remaining sports were confined to either the men’s or women’s athletic programs. These teams consisted of the following: Men Women (1) Baseball (1) Field Hockey (2) Football (2) Gymnastics (3) Golf (3) Softball (4) Water Polo (4) Volleyball (5) Wrestling In 1990-91, there were a total of 894 men and women undergraduates competing on these 31 varsity teams. Of this total, 566 were men (63.3%) men and 328 were women (36.7%). Plaintiffs’ Exhibit 3. Records indicate that during this academic year, there were 2951 (52.4%) men and 2683 (47.-6%) women enrolled as undergraduates at Brown. Plaintiffs’ Exhibit 1." }, { "docid": "18256479", "title": "", "text": "that the decision not to renew plaintiff's contract may not have been \"along lines previously contemplated.” . Defendants perhaps implicitly make this argument in their discussion of Lewis v. Smith, 255 F.Supp.2d 1054 (D.Ariz.2003), however, that case is factually distinguishable. To shore up its primary holding that plaintiff had not spoken on a matter of public concern, the court in Lewis held that the defendants \"had a legitimate interest in maintaining the effective functioning of [a] small coaching staff” and this interest outweighed the plaintiffs \"limited First Amendment interest.” 255 F.Supp.2d at 1071. In contrast, Burch's First Amendment interest in publicly supporting the women wrestlers' discrimination complaint is not a \"limited” one. Moreover, he did speak on a matter of public concern. See also Bernasconi v. Tempe Elementary Sch. Dist. No. 3, 548 F.2d 857, 862 (9th Cir.1977) (\"[Where] public statements made by the plaintiff were directed primarily at a general practice rather than at named individuals, the court finds the balance to tip in favor of the [plaintiff's] right to speak.” (quoting the underlying District Court order)). . The \"philosophical differences” refer, in part, to plaintiff’s arguably unique perspective on Title IX. (Defs.’ SUF Ex. A (Warzecka Decl. ¶ 29).) As previously explained, defendants implemented a roster management plan for the purposes of reducing costs and achieving greater proportionality between the number of male and female varsity athletes. (Id. (Warzecka Decl. ¶ 7).) Pursuant to the plan, the number of spots for males on the varsity team rosters at UCD were capped. In response to this change, plaintiff sent a memorandum to Vice Chancellor of Student Affairs Carol Wall and defendants Warzecka, Franks, and Gill-Fisher in which he thoughtfully analyzed the issue. (See id. Ex. FF (June 22, 1999 Burch Mem.).) Plaintiff started his memo by stating that \"I am in the minority among my wrestling coach colleagues in believing that Title IX is a fair piece of legislation” and \"[i]n fact I believe that Title IX doesn’t go far enough toward equity for women in sport.” (Id.) However, the purpose of plaintiff’s memo was not to extol the" }, { "docid": "20126858", "title": "", "text": "NCAA structure. In academic year 1990-91, Brown funded a total of 31 varsity teams through its athletic department that participated in NCAA and other intercollegiate competition. Of these 31 teams, 16 were for men and 15 were for women. In eleven sports, Brown offered teams for both sexes: Men and Women (1) Basketball (2) Crew (3) Cross-Country (4) Ice Hockey (5) Lacrosse (6) Soccer (7) Squash (8) Swimming (9) Tennis (10) Fall Track (11) Spring Track The remaining sports were confined to either the men’s or women’s athletic programs. These teams consisted of the following: Men Women (1) Baseball (1) Field Hockey (2) Football (2) Gymnastics (3) Golf (3) Softball (4) Water Polo (4) Volleyball (5) Wrestling In 1990-91, there were a total of 894 men and women undergraduates competing on these 31 varsity teams. Of this total, 566 were men (63.3%) men and 328 were women (36.7%). Plaintiffs’ Exhibit 3. Records indicate that during this academic year, there were 2951 (52.4%) men and 2683 (47.-6%) women enrolled as undergraduates at Brown. Plaintiffs’ Exhibit 1. Nearly all of the men’s varsity teams were established before 1927. Baseball was created first in 1869, followed by football in 1878 and track in 1879. The only men’s teams established after 1927 were crew in 1961, water polo in 1974 and squash in 1989. By comparison, virtually all of the women's varsity teams were created between 1971 and 1977. The only women’s varsity team created after this period was winter track in 1982. Before 1971, all women’s sports were operated out of a separate athletic program at Pembroke College, a sub-unit of Brown University until its merger with Brown College during that year. Before the merger, the women’s athletic program at Pembroke bore no resemblance to the program which Brown provided to its male varsity athletes. While Pembroke did have a few intercollegiate teams (e.g., field hockey, basketball, tennis), the women’s program received very little financial or institutional support from the university. In May 1991, Brown cut off university funding for, and lowered the status of, 4 of the 31 varsity teams: men’s golf," }, { "docid": "13448757", "title": "", "text": "credit UCD's internal report as accurately describing the elimination of a women’s golf team. . In 1992 an associate athletic director warned of a \"backward slide in compliance,” and in 1993 UCD's acting athletic director noted that \"the ratio of women participating has decreased slightly in recent years.” . Again, \"the number of female athletes” may include athletes who are counted more than once by virtue of participating in more than one sport. . As noted, supra note 2, the plaintiffs have submitted sufficient facts showing the existence of female varsity wrestling opportunities to survive summary judgment. UCD's subsequent decision to permit women to compete against men for a slot on the team does not affect our analysis. By requiring women to prevail against men, the university changed the conditions under which women could participate in varsity wrestling in a manner that foreseeably precluded their future participation. UCD’s contention that it \"ha[dj not declared wrestling to be a contact sport” does not advance its position. First, wrestling is a contact sport under OCR regulations. 34 C.F.R. § 106.41(b). While women must be permitted to try out for all-male teams if there is no women's team in that sport, this requirement is waived for contact sports. Id. But the contact sport \"exemption did not give [UCD] license to discriminate against [the plaintiffs] because of their sex once [UCD] decided to allow [them] to join the team.” Mercer v. Duke Univ., 401 F.3d 199, 202 (4th Cir.2005) (citation omitted). . UCD points to its Title DC Compliance Officer and grievance procedure as evidence of a practice of program expansion. As both are required by OCR regulations, 34 C.F.R. § 106.8, and neither affects the number of female athletes or teams, they do not indicate program expansion for purposes of Option Two. . Defendant Warzecka chose to create a varsity golf team in part because the Big West Conference requires participating schools to add conference-sponsored sports, of which golf is one, before adding other sports, and because golf could be added at minimal expense, thanks to a local country club's willingness to provide" }, { "docid": "10317461", "title": "", "text": "have, in an effort to avoid such actions, voluntarily reduced men’s participation opportunities. Id. Specifically, plaintiffs allege that Buck-nell University eliminated its men’s intercollegiate wrestling team effective in the 2002-03 academic year solely to bring the institution in compliance with Title IX, and in particular with the first prong of the Three Part Test. First Am. Compl. ¶ 50. Plaintiffs further assert that the University expressly articulated this rationale for its action in a press release issued on May 2, 2001. Id. Plaintiffs further assert that Marquette University eliminated its men’s intercollegiate wrestling team, notwithstanding the fact that it had been privately funded since 1993, in order to comply with Title IX, and that the University’s athletic director “indicated that Marquette might bring back its wrestling program if the legal requirements changed.” First Am. Compl. ¶ 51. Finally, plaintiffs contend that Yale’s decision to demote its intercollegiate men’s varsity wrestling team to “club status,” ostensibly for budgetary reasons despite an offer to endow the team, was made “because of Title IX.” First Am. Compl, ¶ 52. In Counts I and II of their First Amended Complaint, plaintiffs allege, referring to the 1979 Policy Interpretation’s Three Part Test and the 1996 Clarification, that neither Title IX nor its implementing regulations authorize DoE to issue a “rule” which permits institutions to engage in gender-conscious cutting or capping of teams to achieve compliance with regulatory standards. Plaintiffs further contend that such a rule permits intentional sex-based discrimination which is not substantially related to the achievement of an “important government objective,” thereby violating both constitutional Equal Protection principles and the language of Title IX. Plaintiffs also object to the comparison of gender proportions in the general student body and in athletic programs embodied in the first prong of the Three Part Test, arguing that the comparison contravenes the language of the statute and regulations. Accordingly, plaintiffs maintain that the 1979 Policy Interpretation and the 1996 Clarification violate Title IX, the 1975 Regulations, and principles of Equal Protection embodied in the Due Process Clause of the Fifth Amendment of the U.S. Constitution. Plaintiffs raise several" }, { "docid": "18256474", "title": "", "text": "Moreover, plaintiff testified that only one of the women wrestlers, Lauren Mancuso, had even a chance of beating one of the men on the team for a spot on the roster. (PL's SUF Ex. 13 (Burch Dep. 218:16-220:16).) . Rather than responding with affidavits or pointing to existing evidence in this case, as required by Federal Rules of Civil Procedure 56(c) & (e), plaintiff merely provides the un-sworn arguments of his lawyers to refute the logical conclusion to be drawn from defendants' presentation of the evidence: that \"the women’s issue” was not initially part of plaintiff’s contract discussions and did not come up in these negotiations until after the women filed their OCR complaint. (PL's SUF No. 188.) . The court cannot stress enough that it does not behoove anyone to make objections simply for the sake of making objections. . Significantly, the practice guide that has apparently spawned the flurry of evidentiary objections that have besieged the court’s law and motion calendar speaks only of \"Objections to Moving Party’s Evidence”. Schwar-zer et al., California Practice Guide: Federal Civil Procedure Before Trial § 14:107 (emphasis added). . Additionally, the portions of plaintiff's deposition that defendants raise these hearsay objections to were solicited by defendants’ attorney. It seems absurd to permit counsel the opportunity to object to her own line of questioning. . The court also relies on the UCD Wrestling Media Guides, (PL's SUF Exs. 20-24), simply to describe the team and the wrestling program. Nothing in these guides actually impacts the court’s analysis here. . Title IX states only that \"[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681. . Although, the framework addresses burdens of \"proof”, the Ninth Circuit has made clear that \"[a]t the summary judgment stage, the prima facie case need not be proved by a preponderance of the evidence.” Yartzoff, 809 F.2d at 1375. . Plaintiff contends in his opposition brief that in" }, { "docid": "18256421", "title": "", "text": "reasons for his termination and further that the decision was not actually made on April 24, 2001. It is sufficient for now to note that plaintiff was not informed of the decision until May 29, 2001 and, according to his deposition testimony, defendants did not cite any of the reasons above in defense of their decision at that meeting. (Pl.’s SUF No. 206; id. Ex. 13 (Burch Dep. 714:1-715:14).) Additionally, defendants appear to have continued to actively negotiate the terms of plaintiffs contract for the 2001-02 season throughout the month of May, despite allegedly having already decided not to renew his employment. (Defs.’ SUF Nos. 180-182; id. Ex. A (Warzecka Decl. ¶¶ 26, 28-29).) B. Plaintiff’s Advocacy on Behalf of Female Wrestlers Plaintiff submits that the real reason for the decision not to renew his contract was his self-styled “positive advocacy” on behalf of female wrestlers who practiced with his team. (Defs.’ SUF Ex. HH (PL’s Resps. to Interrogs. of UCD-2d Set, No. 39.) Although women had “unofficially” participated in the wrestling program before and during plaintiffs tenure, in the year leading up to plaintiffs dismissal, the opportunities for women wrestlers declined as a result of roster caps that were implemented to reduce costs and to balance the number of male and female varsity athletes at UCD. (Id. Ex. A (Warzecka Decl. ¶ 7)); PL’s SUF Exs. 20, 24 (UCD Wrestling Media Guides).) The wrestling team was officially capped at 30 and, either because the women could not beat any of the men for a spot or because defendants instructed plaintiff to remove women from the men’s team, the female wrestlers were not included on the 2000-01 roster. Plaintiff asserts that he found this situation distressing and that he repeatedly-challenged UCD’s efforts to phase out women’s wrestling. Specifically, plaintiff “tried to argue the point” when Warzecka “ordered the removal of the womén from the wrestling program- in October 2000.” (Defs.’ SUF Ex. HH (Pl.’s Resps. to Inter-rogs. of UCD-2d Set, No. 39).) When Warzecka threatened to terminate plaintiff in response, plaintiff “complied with the order under protest and wrote a" }, { "docid": "20126882", "title": "", "text": "student athletes is not substantially proportionate to the relative population of each sex.” Defendant’s Post-Hearing Memorandum at 37 (emphasis in original). Brown’s second and related argument is that it is effectively accommodating the interests and abilities of its students. Brown notes that its athletic program consists of a wide spectrum of sporting services, including the free use of athletic facilities, physical education classes, intramural sports, club sports and intercollegiate club sports, as well as junior varsity and varsity sports. At all of these levels, Brown asserts, it does not discriminate on the basis of sex, nor does it limit the number of “opportunities” available for either men or women. Brown also boasts that it fields one of the highest number of men’s and women’s teams to compete at the NCAA or Ivy League level. Thus, according to the defendants, any disparities which exist between the number of men and women varsity athletes is merely a reflection of the varying interests and abilities of the students. Finally, Brown maintains that the change in status of the four teams is “not legally significant” under Title IX. Post-Hearing Memorandum at 21. Brown notes that those teams continue to compete at an intercollegiate level and that the Policy Interpretation specifically allows “club teams” to be considered “intercollegiate teams” where they “regularly participate in varsity competition.” The only change, from Brown’s perspective, is a shift in funding status. Alternatively, Brown argues that even if the change of status was legally significant, its actions expanded the ratio of men to women in the varsity program because almost twice as many men were affected than women. 2. Defining The Applicable Standard: Threshold Issues a. Policy Interpretation and Investigator’s Manual I must state at the outset of my analysis that there are no simple tests to apply in this area. I also recognize that the Policy Interpretation and the unpublished Investigator’s Manual do not carry the force of law or establish controlling standards for this Court. Nevertheless, I believe the Policy Interpretation, and to a slightly lesser extent the Investigator’s Manual, are important guides in unraveling the requirements" }, { "docid": "13448740", "title": "", "text": "contraction of female athletic participation opportunities that began in 2000. UCD’s post-2000 strategy for sports equality between the sexes appears to have consisted of reducing varsity athletics overall, and in the process reducing men’s participation opportunities more than women’s participation opportunities by using “roster management” to limit the size of men’s teams. The Clarification explicitly precludes considering such reductions as evidencing program expansion: OCR will not find a history and continuing practice of program expansion where an institution increases the proportional participation opportunities for [women] by reducing opportunities for [men] alone or by reducing participation opportunities for [men] to a proportionately greater degree than for [women]. ... [Option Two] considers an institution’s good faith remedial efforts through actual program expansion.... Cuts in the program for [women], even when coupled with cuts in the program for [men], cannot be considered remedial because they burden members of the sex already disadvantaged by the present program. An institution that has eliminated some participation opportunities for women can still satisfy Option Two if the elimination is offset by a strong history of program expansion. In UCD’s case, however, the elimination of women’s wrestling opportunities occurred in the context of a women’s athletics program that was, at best, stagnant. We therefore hold that UCD has not had a history of program expansion for women and so did not satisfy Option Two through such a history. The 1996 Clarification lists two factors that may indicate a continuing practice of program expansion: [A]n institution’s current implementation of a non-discriminatory policy or procedure for requesting the addition of sports (including the elevation of club or intramural teams) and the effective communication of the policy or procedure to students; and an institution’s current implementation of a plan of program expansion that is responsive to developing interests and abilities. The record contains undisputed evidence that UCD has a procedure for requesting additional varsity sports and effectively communicates that procedure to students. According to the procedure distributed to students, the “primary factor” in UCD’s evaluation of proposals to create new varsity teams is the “[o]verall impact on intercollegiate program gender equity.”" }, { "docid": "18256452", "title": "", "text": "third element of the prima facie case may be inferred from ... the proximity in time between the protected action and the allegedly retaliatory employment decision.” Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.1987). However, if a plaintiffs causation arguments rest on the relative timing of his protected activity and his dismissal, the plaintiff must also clearly show that the defendant was aware of the protected activity when the adverse employment decision was made. Id. at 1375 (citing Miller v. Fairchild Indus., Inc., 797 F.2d 727, 731 n. 1 (9th Cir.1986), for the proposition that “an employer’s decision on a course of action made prior to learning of the employee’s protected activity does not give rise to an inference of causation”). The parties do not appear to dispute that shortly after April 24, 2001, when the women wrestlers filed their discrimination complaint, defendants were aware of plaintiffs belief that sex discrimination in violation of Title IX had transpired. Plaintiff undeniably influenced the athletes’ decision to file a complaint and he visibly supported them cause. Starting in May, and perhaps in late April, plaintiff actively “complainfed] about the discriminatory treatment of others,” which is a protected activity. Ray, 217 F.3d at 1240 n. 3. Whether plaintiff was engaged in protected activity prior to April 24, 2001 is not as clear. Although informal complaints to a supervisor are protected, see id., plaintiffs limited citations to interrogatories and deposition testimony in support of his motion do not establish that plaintiff complained of discrimination against the female wrestlers prior to May, 2001. Instead, plaintiffs evidence appears to show only that he appealed to his supervisors to recognize a women’s varsity wrestling team. This advocacy is not equivalent to a complaint of discrimination. Cf. Jurado v. Eleven-Fifty Corp., 813 F.2d 1406 (9th Cir.1987) (holding that plaintiff failed to establish that he engaged in protected activity when he complained about the impact that an English-only rule would have on his reputation as a radio personality and only alleged that this same conduct was discriminatory after he was fired). Moreover, because establishing a women’s wrestling team," }, { "docid": "18256472", "title": "", "text": "nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment”). Moreover, in this instance, plaintiff's research into this fact is obviously incomplete, as the response submitted to the court still includes the assumed internal comment \"WAS THIS THE REASON FOR THE MEDIATION?” .Although wrestling is a men's sport, women wrestlers were permitted to practice with the team, as discussed in more detail below. . Plaintiff argues that because the books did not close until June, 2001, defendants cannot claim to have legitimately fired him for running over budget during the 2000-01 season. (PL's Opp’n to Defs.’ Mot. for Summ. J. 40; see also (Defs.’ SUF Ex. LLL (Bullís Decl. ¶ 5 (stating that plaintiff went over budget in the 1998-99, 1999-2000, and 2000-01 seasons))).) However, the team’s season ended in March and defendant does not point to any sources of income that could have made up for any existing deficits. Moreover, plaintiff fails to cite to any support for his naked denial of defendants’ facts regarding budget overruns and further admits to exceeding his budget in some years. (PL’s SUF Nos. 169, 170.) . Women’s wrestling was not a varsity sport at UCD between 1995 and 2001. (Defs.’ SUF Ex. II (Gill-Fisher Decl. ¶ 3).) Instead, women were permitted to practice with the men’s team if they filled out the same paperwork as the male wrestlers. (Id.; see also PL’s SUF Exs. 20, 24 (UCD Wrestling Media Guides).) . The parties vigorously dispute who is responsible for the removal of the women from the roster. (PL’s SUF No. 66.) As suggested above, plaintiff stated that he was explicitly told to remove the female wrestlers from the roster while defendants declared that the 30, and later 34, available slots were given to plaintiff to fill as he saw fit, regardless of an athlete's gender. (Id. Ex. 13 (Burch Dep. 320:12-321:4); id. Ex. 17 (Gill-Fisher Dep. 407:14-411:9).) Defendants add that decisions regarding who to put on a roster are entirely within the discretion of the coach, not the Athletic Department supervisors. (Defs.’ SUF Ex. II (Gill-Fisher Decl. ¶ 7).)" }, { "docid": "18256453", "title": "", "text": "Starting in May, and perhaps in late April, plaintiff actively “complainfed] about the discriminatory treatment of others,” which is a protected activity. Ray, 217 F.3d at 1240 n. 3. Whether plaintiff was engaged in protected activity prior to April 24, 2001 is not as clear. Although informal complaints to a supervisor are protected, see id., plaintiffs limited citations to interrogatories and deposition testimony in support of his motion do not establish that plaintiff complained of discrimination against the female wrestlers prior to May, 2001. Instead, plaintiffs evidence appears to show only that he appealed to his supervisors to recognize a women’s varsity wrestling team. This advocacy is not equivalent to a complaint of discrimination. Cf. Jurado v. Eleven-Fifty Corp., 813 F.2d 1406 (9th Cir.1987) (holding that plaintiff failed to establish that he engaged in protected activity when he complained about the impact that an English-only rule would have on his reputation as a radio personality and only alleged that this same conduct was discriminatory after he was fired). Moreover, because establishing a women’s wrestling team, as opposed to more varsity opportunities for women in general, was not required to comply with Title IX, the court cannot say that defendants should have interpreted plaintiffs inexact complaints as complaints of discrimination. Cf. Barber v. CSX Distrib. Servs., 68 F.3d 694, 702 (3d Cir.1995) (“A general complaint of unfair treatment does not translate into a charge of illegal ... discrimination.”). (See also Pl.’s SUF No. 39 (recognizing that “Title IX compares actual participation opportunities for males and females, not the number of sports”)). Plaintiff may not be required to use “magic words” to engage in protected activity, but he did have an obligation to “at least say something to indicate [that gender was] an issue.” Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1008 (7th Cir.2000); Mayfield v. Sara Lee Corp., No. C 04-1588, 2005 WL 88965, at *8 (N.D.Cal. Jan.13, 2005) (recognizing plaintiffs duty to “alert[] his employer to his belief that discrimination, not merely unfair ... treatment, had occurred”). Significantly, plaintiff has faded to point the court to any" }, { "docid": "18256423", "title": "", "text": "memo to Defendants indicating that the women were removed from the program at [defendants’] request.” (Id.) Plaintiff also insists that he participated in the female wrestlers’ efforts to be reinstated. In January 2001, he “reminded ... Warzecka that the women wanted to be varsity” and further communicated that they wanted access to varsity benefits, including medical care. (Id. No. 40.) Plaintiff also states that he told Warzecka at this time that the women were “offended by Mr. Warzecka’s treatment of them .... ” (Id. (PL’s Resps. to Interrogs. of UCD-2d Set, No. 40).) Finally, plaintiff also spoke to Swanson “about these problems” around the same time. (Id.) On April 24, 2001, three female wrestlers filed a complaint with the Office for Civil Rights of the United States Department of Education (“OCR”) in which they alleged gender-based discrimination in violation of Title IX. (PL’s SUF No. 175, 175.) They also sent letters to Warzecka, Gill-Fisher, and Swanson on April 30, 2001 to inform them of the complaint. (Id. No. 175.) Within the first week of May, these defendants and Franks had all received notice of the OCR complaint in some form. (Id. Nos. 177-179.) In their complaint, the women credited plaintiff with having made them aware that' the “athletic administration’s orders” to remove them from the wrestling team might constitute illegal sex discrimination. (Defs.’ SUF Ex. QQQQ (Apr. 24, 2001 OCR Compl. ¶¶ 7-8).) Additionally, in the weeks • that followed, plaintiff played an active part in the women’s efforts to draw attention to their plight and their complaint. Through protests, newspaper articles, television broadcasts, and even a meeting - with State Assembly Member Helen Thomson, plaintiff visibly supported the female wrestler’s allegations of sex discrimination throughout the month of May. (Defs.’ SUF Ex. HH (PL’s Resps. to Interrogs. of UCD-2d Set, No. 40).) He also -started bringing up the reinstatement of women’s wrestling as part of his ongoing contract negotiations, also in May. (PL’s SUF Nos. 183, 186-188, 222 (noting that the women’s wrestling team issue was not a part of plaintiff’s contract negotiations until May 14, 2001).) C. The" }, { "docid": "18256473", "title": "", "text": "exceeding his budget in some years. (PL’s SUF Nos. 169, 170.) . Women’s wrestling was not a varsity sport at UCD between 1995 and 2001. (Defs.’ SUF Ex. II (Gill-Fisher Decl. ¶ 3).) Instead, women were permitted to practice with the men’s team if they filled out the same paperwork as the male wrestlers. (Id.; see also PL’s SUF Exs. 20, 24 (UCD Wrestling Media Guides).) . The parties vigorously dispute who is responsible for the removal of the women from the roster. (PL’s SUF No. 66.) As suggested above, plaintiff stated that he was explicitly told to remove the female wrestlers from the roster while defendants declared that the 30, and later 34, available slots were given to plaintiff to fill as he saw fit, regardless of an athlete's gender. (Id. Ex. 13 (Burch Dep. 320:12-321:4); id. Ex. 17 (Gill-Fisher Dep. 407:14-411:9).) Defendants add that decisions regarding who to put on a roster are entirely within the discretion of the coach, not the Athletic Department supervisors. (Defs.’ SUF Ex. II (Gill-Fisher Decl. ¶ 7).) Moreover, plaintiff testified that only one of the women wrestlers, Lauren Mancuso, had even a chance of beating one of the men on the team for a spot on the roster. (PL's SUF Ex. 13 (Burch Dep. 218:16-220:16).) . Rather than responding with affidavits or pointing to existing evidence in this case, as required by Federal Rules of Civil Procedure 56(c) & (e), plaintiff merely provides the un-sworn arguments of his lawyers to refute the logical conclusion to be drawn from defendants' presentation of the evidence: that \"the women’s issue” was not initially part of plaintiff’s contract discussions and did not come up in these negotiations until after the women filed their OCR complaint. (PL's SUF No. 188.) . The court cannot stress enough that it does not behoove anyone to make objections simply for the sake of making objections. . Significantly, the practice guide that has apparently spawned the flurry of evidentiary objections that have besieged the court’s law and motion calendar speaks only of \"Objections to Moving Party’s Evidence”. Schwar-zer et al., California" }, { "docid": "18256475", "title": "", "text": "Practice Guide: Federal Civil Procedure Before Trial § 14:107 (emphasis added). . Additionally, the portions of plaintiff's deposition that defendants raise these hearsay objections to were solicited by defendants’ attorney. It seems absurd to permit counsel the opportunity to object to her own line of questioning. . The court also relies on the UCD Wrestling Media Guides, (PL's SUF Exs. 20-24), simply to describe the team and the wrestling program. Nothing in these guides actually impacts the court’s analysis here. . Title IX states only that \"[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681. . Although, the framework addresses burdens of \"proof”, the Ninth Circuit has made clear that \"[a]t the summary judgment stage, the prima facie case need not be proved by a preponderance of the evidence.” Yartzoff, 809 F.2d at 1375. . Plaintiff contends in his opposition brief that in March, 2001, he sought to \"use the clout of his success [during the 2000-01 season] to push harder for the reinstatement of the women wrestlers.” (PL’s Opp’n to Defs.' Mot. for Summ. J. 26-27.) The brief states, without citing any depositions, answers to interrogatories, or affidavits, that at this time, plaintiff \"asked Defendants Warzecka and Swanson to reinstate the women and reiterated his belief that Defendants had discriminated against them.” (Id. at 27.) In general, the entire section of plaintiff's brief describing his \"Extensive Protected Activity” is almost completely devoid of supporting citations that might direct the court to evidence that plaintiff accused his supervisors of discrimination, as opposed to merely pressuring them for a women's wrestling team, prior to May, 2001. (Id. at 19-33.) Perhaps recognizing this hole in his presentation, plaintiff relies on comments made to his co-workers that could have been heard by \"anyone walking by” his office to support his allegations that his supervisors knew that he believed the women wrestlers were the victims of sex discrimination. (Id. at 37.) Plaintiff" }, { "docid": "21646536", "title": "", "text": "* Plaintiffs consist of two types of associations — national associations of persons (including coaches) with interests in wrestling or other college sports, and associations of alumni, student athletes and others committed to advancing wrestling at specific universities (Bucknell, Marquette and Yale). Their complaint is that the defendant Department of Education has unlawfully enforced Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681—1688, in a way that has caused a reduction in opportunities for participation in men’s sports, especially wrestling. They say that the Department has pressured colleges to achieve women’s participation in sports proportional to women’s enrollment, without regard to varying levels of interest or skill. As colleges have competing demands on their resources, cutting men’s teams is one of the obvious ways for them to meet the Department’s measure of proportionality. And cut they have. Plaintiffs cite a report by the General Accounting Office, “Intercollegiate Athletics: Four-Year Colleges’ Experience Adding and Discontinuing Teams” (March 2001) (“GAO Report”), saying that schools had cut 519 men’s teams between 1981-82 and 1998-99, including 171 wrestling teams. GAO Report at 18. Of the 272 responding schools that had cut a men’s team in the period 1992-93 to 1999-2000 (see id. at 33), 31% cited the need to meet gender equity goals or requirements. Id. In the face of these data, the district court found that plaintiffs had failed to allege facts showing any causal connection between the Department’s actions and the reduction in plaintiffs’ members’ coaching opportunities, and thus found them without standing. This was error. * * * Plaintiffs point to two documents setting forth the Department’s interpretation of Title IX: “Title IX of the Education Amendments of 1972; a Policy Interpretation; Title IX and Intercollegiate Athletics,” 44 Fed.Reg. 71,413 (December 11, 1979) (codified at 45 C.F.R. pt. 86) (the “1979 Policy Interpretation”), and a statement issued by the Assistant Secretary for Civil Rights, “Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test” (January 16, 1996) (the “1996 Clarification”). The 1979 Interpretation sets forth what has come to be known as the “Three-Part Test”: a. Compliance will be" }, { "docid": "13448717", "title": "", "text": "academic tutoring; insurance; and access to varsity facilities and equipment. UCD did not operate separate wrestling teams for men and women; a handful of women wrestlers participated in what was largely a men’s team, practicing with the men and receiving coaching from Coach Mike Burch. During the 2000-2001 academic year, UCD eliminated all women from the wrestling team. After the students protested to UCD administrators and filed a complaint with the Office for Civil Rights (OCR), UCD agreed to permit women again to participate in varsity wrestling. Their participation, however, was conditioned on their ability to beat male wrestlers in their weight class, using men’s collegiate wrestling rules. (Prior to their elimination from the team, women wrestlers at UCD had competed only against other women and used international freestyle rules.) As a result of the new requirement that they compete against men under men’s rules, the female students were unable to participate on the wrestling team and lost the benefits associated with varsity status, including scholarships and academic credit. The students then filed a class action against UCD and several UCD officials in their individual and official capacities, on behalf of all current and future female UCD students denied equal athletic participation opportunities. The plaintiffs sought damages and injunctive relief under Title IX and also asserted equal protection claims under 42 U.S.C. § 1983. Just before the scheduled hearing on class certification, the plaintiffs requested a stay due to their attorney’s serious illness. During the ten-month stay, Mancuso, the only named plaintiff still attending UCD at that point, graduated. As soon as the stay ended, the plaintiffs moved to add as plaintiffs three students, Kelsey Brust, Laura Ludwig, and Jessica Búlala, all still enrolled at UCD. The district court refused to allow the amendment, holding that the plaintiffs failed to meet the good cause required under Federal Rule of Civil Procedure 16 when such a motion is filed after the issuance of a scheduling order. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir.1992). Without any named plaintiffs currently attending UCD, the plaintiffs stipulated to dismissal of" } ]

[ { "docid": "23040327", "title": "", "text": "evidence that ADP had a reasonable basis to be dissatisfied. This court has adopted an “honest belief’ rule with regard to an employer’s proffered reason for discharging an employee. Smith v. Chrysler Corp., 155 F.3d 799, 806-07 (6th Cir.1998). Under this rule, as long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect. Id. at 806. An employer has an honest belief in its reason for discharging an employee where the employer reasonably relied “on the particularized facts that were before it at the time the decision was made.” Id. at 807. The evidence in this case supports ADP’s claim that it honestly believed in its proffered nondiscriminatory reason for discharging Majewski. ADP documented Majewski’s declining performance over a period of years and invested time in implementing a plan to help’ Majewski to improve. Lapses in Majewski’s performance were verified, and his relationship with his supervisor, Kudej, was investigated to ensure that Majewski was being evaluated fairly. Kudej checked into the payroll wrap incident with particular care and reached his conclusion regarding its cause on the basis of specific evidence. Majewski’s assertion that he did not delete the payroll wrap is insufficient to call into question ADP’s honest belief that he did. Accordingly, we conclude that Majewski has not met his burden of raising a genuine issue of material fact as to whether ADP’s reason for discharging him was pretextual. F. The district court correctly dismissed Majewski’s retaliatory discharge claim Majewski’s final claim is for retaliatory discharge. This claim is brought under Ohio Revised Code § 4112.02(1), which provides that it is unlawful “[f]or any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice_” In analyzing retaliatory discharge claims, the Ohio courts rely on federal caselaw. Peterson v. Buckeye Steel Casings, 133 Ohio App.3d 715, 729 N.E.2d 813, 821-22 (Ohio Ct.App. 1999). Majewski can establish a prima facie case of retaliatory discharge by showing that" } ]

[ { "docid": "20385803", "title": "", "text": "to be ‘a pretext for discrimination’ unless it is shown both that the reason was false, and that discrimination was the real reason”). Therefore, the plaintiff was required to offer evidence from which a jury could reasonably reject the defendants’ stated reason for disciplining — and ultimately firing— her, and that it used those reasons to mask its retaliation against her for speaking to the Ohio investigators. See Surry v. Cuyahoga Cmty. College, 149 Ohio App.3d 528, 778 N.E.2d 91, 97-98 (2002). If an employer has an “honest belief’ in the nondiscriminatory basis upon which it has made its employment decision (i.e. the adverse action), then the employee will not be able to establish pretext. Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir.2001) (stating that “as long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect”). As we have stated, “[w]hen an employer reasonably and honestly relies on particularized facts in making an employment decision, it is entitled to summary judgment on pretext even if its conclusion is later shown to be ‘mistaken, foolish, trivial, or baseless.’ ” Chen, 580 F.3d at 401 (quoting Clay v. United Parcel Serv., Inc., 501 F.3d 695, 713-15 (6th Cir.2007)). The employer’s claim of honest belief is necessarily tied to the nature of its investigation and disciplinary decision process. We have noted that the “key inquiry ... is ‘whether the employer made a reasonably informed and considered decision before taking’ the complained-of action.” Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598-99 (6th Cir.2007) (quoting Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir.1998)). The employer certainly must point to particularized facts upon which it reasonably relied. But “we do not require that the decisional process used by the employer be optimal or that it left no stone unturned.” Smith, 155 F.3d at 807; see also Allen v. Highlands Hosp. Corp., 545 F.3d 387, 398 (6th Cir.2008). To defeat a summary judgment motion" }, { "docid": "20385804", "title": "", "text": "relies on particularized facts in making an employment decision, it is entitled to summary judgment on pretext even if its conclusion is later shown to be ‘mistaken, foolish, trivial, or baseless.’ ” Chen, 580 F.3d at 401 (quoting Clay v. United Parcel Serv., Inc., 501 F.3d 695, 713-15 (6th Cir.2007)). The employer’s claim of honest belief is necessarily tied to the nature of its investigation and disciplinary decision process. We have noted that the “key inquiry ... is ‘whether the employer made a reasonably informed and considered decision before taking’ the complained-of action.” Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598-99 (6th Cir.2007) (quoting Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir.1998)). The employer certainly must point to particularized facts upon which it reasonably relied. But “we do not require that the decisional process used by the employer be optimal or that it left no stone unturned.” Smith, 155 F.3d at 807; see also Allen v. Highlands Hosp. Corp., 545 F.3d 387, 398 (6th Cir.2008). To defeat a summary judgment motion in such circumstances, the “plaintiff must produce sufficient evidence from which the jury could reasonably reject [the defendants’] explanation and infer that the defendants ... did not honestly believe in the proffered nondiscriminatory reason for its adverse employment action.” Braithwaite v. Timken Co., 258 F.3d 488, 493-94 (6th Cir.2001) (internal citations, quotation marks, and brackets omitted) (alteration in original). For example, the plaintiff may produce evidence that an error by the employer was “too obvious to be unintentional.” Smith, 155 F.3d at 807 (citation omitted). However, “[a]n employee’s bare assertion that the employer’s proffered reason has no basis in fact is insufficient to call an employer’s honest belief into question, and fails to create a genuine issue of material fact.” Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 285 (6th Cir.2012) (quoting Joostberns v. United Parcel Servs., Inc., 166 Fed.Appx. 783, 791 (6th Cir.2006)). Tingle argues that the inconsistencies among the disciplinary reports, contemporaneous or near-contemporaneous statements by the defendants’ other employees, and deposition testimony by the supervisor who wrote the reports would permit" }, { "docid": "22566897", "title": "", "text": "establishing a prima facie case, “the law in this circuit is clear that temporal proximity cannot be the sole basis for finding pretext.” Donald, 667 F.3d at 763. However, “suspicious timing is a strong indicator of pretext when accompanied by some other, independent evidence.” Bell v. Prefix, Inc., 321 Fed.Appx. 423, 431 (6th Cir.2009) (citation and internal quotation marks omitted). A plaintiff may establish pretext by showing that the employer’s proffered reasons (1) have no basis in fact; (2) did not actually motivate the action; or (3) were insufficient to warrant the action. Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir.2000). “Whichever method the plaintiff employs, he always bears the burden of producing sufficient evidence from which the jury could reasonably reject [the defendant’s] explanation and infer that the defendant! ] intentionally discriminated against him.” Clark, 424 Fed.Appx. at 474 (citation and internal quotation marks omitted). Seeger seeks to demonstrate pretext by means of the first method — no basis in fact — -which is essentially an attack on the credibility of the employer’s proffered reason ... [and] consists of showing that the employer did not actually have cause to take adverse action against the employee based on its proffered reason, and thus, that the proffered reason is pretex-tual. Where the employer can demonstrate an honest belief in its proffered reason, however, the inference of pretext is not warranted. Thus, this Circuit has adopted the “honest belief rule.” Under [this] rule, an employer’s proffered reason is considered honestly held where the employer can establish it reasonably reli[ed] on particularized facts that were before it at the time the decision was made. Thereafter, the burden is on the plaintiff to demonstrate that the employer’s belief was not honestly held. An employee’s bare assertion that the employer’s proffered reason has no basis in fact is insufficient to call an employer’s honest belief into question, and fails to create a genuine issue of material fact. Joostberns, 166 Fed.Appx. at 791 (citations and internal quotation marks omitted). The ground rules for application of the honest belief rule are clear. A plaintiff" }, { "docid": "16967447", "title": "", "text": "decisional process used by the employer be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably info:rmed and considered decision before taking an adverse employment action.” Wright v. Murray Guard, Inc., 455 F.3d 702, 708 (6th Cir.2006). “As long as the employer held an honest belief in its proffered reason, the employee cannot establish pretext even if the employer’s reason is ultimately found to be mistaken, foolish, trivial, or baseless.” Seeger, 681 F.3d at 285-86. To prove pretext, the employee must allege “more than a dispute over the facts upon which the discharge was based. He must put forth evidence which demonstrates that the employer did not ‘honestly believe’ in the proffered non-discriminatoxy reason for its adverse employment action.” Braithwaite v. Timken Co., 258 F.3d 488, 493-94 (6th Cir.2001). If the employee is able to “produce sufficient evidence to establish that the employer failed to make a reasonably informed and considered decision before taking its adverse employment action, thereby making its decisional process ‘unworthy of credence,’ then any reliance placed by the employer in such a process cannot be said to be honestly held.” Smith, 155 F.3d at 807-08. The employee may make this showing, for example, by demonstrating “an error on the part of the employer that is too obvious to be unintentional.” Seeger, 681 F.3d at 286. Plaintiff first argues that he did actually report his injury and therefore Defendants’' proffered failure-to-report reason is false. Even if the Court accepts as true the facts alleged by Plaintiff, this is insufficient to show that Defendants lacked an honest belief. According to Plaintiffs testimony, Lane turned off his radio after Plaintiff picked up the tree stumps and he was unable to contact Lane for the remainder of the day on March 27, 2012. (Doc. 42 at 106). The next morning, Plaintiff attempted to speak with Lane just as he was exiting his office for a meeting, but Plaintiff admits that Lane rushed off before Plaintiff was able to speak with him. (Id. at 69-70). Saunders returned to work on March" }, { "docid": "22574931", "title": "", "text": "motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.’ ” Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1082 (6th Cir.1994) (quoting Burdine, 450 U.S. at 256, 101 S.Ct. 1089). Under the “honest belief’ rule developed by the Seventh Circuit, “so long as the employer honestly believed in the proffered reason,” an employee cannot prove pretext even if the employer’s reason in the end is shown to be “mistaken, foolish, trivial, or baseless.” Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir.1998) (citing, inter alia, Kariotis v. Navistar Int'l Trans. Corp., 131 F.3d 672, 676 (7th Cir.1997)). We have rejected the Seventh Circuit’s bare “honest belief’ doctrine and instead have adopted a modified honest-belief approach. Id. (holding that “[t]o the extent the Seventh Circuit’s application of the ‘honest belief rule credits an employer’s belief without requiring that it be reasonably based on particularized facts rather than on ignorance and mythology, we reject its approach”). Under this approach, for an employer to avoid a finding that its claimed nondiscriminatory reason was pretextual, “the employer must be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.” Id. at 806-07 (defining standard in the context of an Americans with Disabilities Act claim); see also Balmer v. HCA, Inc., 423 F.3d 606, 614 (6th Cir.2005) (applying Smith rule in Title VII retaliation case). Even when the employer makes such a showing, “the protection afforded by the rule is not automatic.... [Ojnee the employer is able to point to the particularized facts that motivated its decision, the employee has the opportunity to produce ‘proof to the contrary.’ ” Smith, 155 F.3d at 807 (quoting Pesterfield v. TVA, 941 F.2d 437, 443 (6th Cir.1991)). In determining whether an employer “reasonably relied on the particularized facts then before it, we do not require that the decisional process used by the employer be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before" }, { "docid": "4847348", "title": "", "text": "terminating Plaintiff had a basis in fact. Defendant asserts that Plaintiffs ability to demonstrate that he did not view the pornographic images on the shared engineering computer is irrelevant under the “honest belief rule.” See Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir.2001). Under the honest belief rule, “as long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect.” Id. Although Defendant asserts a correct statement of the law, the loss of the hard drive containing the information relating to Plaintiffs viewing of pornography precludes Defendant’s reliance on the honest belief rule as a matter of law. As noted by the Sixth Circuit, “for an employer to avoid a finding that its claimed nondiscriminatory reason was pretextual, ‘the employer must be able to establish its reasonable reliance on the particularized facts before it at the time the decision was made.’ ” Wright v. Murray Guard, Inc., 455 F.3d 702, 708 (6th Cir.2006) (quoting Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir.1998)). Without the hard drive, a reasonable juror could infer that Knowles did not have an honest belief in its proffered nondiscriminatory reason. Because Plaintiff has established a genuine issue of material fact as to whether he has met his prima facie case of retaliation and whether Defendant’s nondiscriminatory reasons for its actions are pretextual, Defendant’s Motion for Summary Judgment as to Plaintiffs retaliation claim is DENIED. D. State law retaliatory discharge In addition to his Title VII claims, Plaintiff also raises the state law claim of retaliatory discharge. In Tennessee a claim of retaliatory discharge may take one of two forms: statuto:ry or common law. See Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 535-37 (Tenn.2002). The Tennessee Supreme Court has held that Tennessee’s retaliatory discharge statute (the “Tennessee Public Protection Act” or “TPPA”) did not preempt the common law tort of retaliatory discharge. Id. at 537. Plaintiff may therefore bring a claim under the TPPA" }, { "docid": "19678774", "title": "", "text": "does not mean that Allen and Slone have succeeded in creating a genuine issue of material fact about whether HHC’s stated reason for terminating them was a pretext designed to hide age-based discrimination. We thus agree with the Hospital that, in determining if the plaintiffs have raised a genuine issue of material fact as to pretext, we should consider not whether Allen and Slone actually breached patient confidentiality, but rather whether the Hospital had an honestly held belief that they had committed a Group I offense. See Michael, 496 F.3d at 598 (explaining that the plaintiffs “disagreement with the facts uncovered in [the employer’s] investigation does not create a genuine issue of material fact that would defeat summary judgment as long as an employer has an honest belief in its proffered nondiscriminatory reason” (internal quotation marks omitted)); Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir.2001) (“[A]s long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect”). This court has explained that the key inquiry in assessing whether an employer holds such an honest belief is whether the employer made a reasonably informed and considered decision before taking the complained-of action. An employer has an honest belief in its rationale when it reasonably relied on the particularized facts that were before it at the time the decision was made. [W]e do not require that the decisional process used by the employer be optimal or that it left no stone unturned. Michael, 496 F.3d at 598-99 (citations and internal quotation marks omitted). Applying this standard to the record before us, we conclude that HHC did hold an honest belief that Allen and Slone had violated patient confidentiality. Despite the lack of a written policy detailing precisely what constitutes the “unauthorized release” of medical records, the uncontradicted evidence shows that the Hospital engaged in a thorough investigation to determine whether Allen’s and Slone’s conduct was inappropriate. This investigation was conducted by personnel in the" }, { "docid": "23078651", "title": "", "text": "hearsay. As this court recently explained under similar circumstances, however, witness statements contained in an investigative report may be considered on summary judgment “not to prove their truth, ... but to demonstrate the state of mind and motive of Defendant’s managers in discharging Plaintiff.” Haughton, 206 Fed.Appx. at 532. Furthermore, Michael’s disagreement with the facts uncovered in Caterpillar’s investigation does not create a genuine issue of material fact that would defeat summary judgment “as long as an employer has an honest belief in its proffered nondiscriminatory reason.” Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir.2001). The key inquiry in assessing whether an employer holds such an honest belief is “whether the employer made a reasonably informed and considered decision before taking” the complained-of action. Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir.1998). An employer has an honest belief in its rationale when it “reasonably relied on the particularized facts that were before it at the time the decision was made.” Majewski, 274 F.3d at 1117 (citation and quotation marks omitted). “[W]e do not require that the decisional process used by the employer be optimal or that it left no stone unturned.” Smith, 155 F.3d at 807. As part of her investigation, Sweeney interviewed Michael’s subordinates, other Caterpillar employees with whom Michael worked, and those employees who might have overheard Michael’s January 20, 2004 confrontation with Henry. Sweeney’s investigation revealed that many of Michael’s coworkers, including Elsesser, Holland, McGhee, Moseley, and Rezan, found Michael difficult to work with and often tardy. Although Michael points out that Gooden’s specific accusations that she required her subordinates to perform personal tasks was never corroborated, the investigation nevertheless pointed to other serious issues with Michael’s management style. Sweeney’s investigation of the initial confrontation between Henry and Michael also revealed additional questions regarding Michael’s professionalism. The only independent witness to the exchange reported that Michael was “screaming” at Henry, that she refused to leave Henry’s office, and that her actions were so aggressive that the witness was concerned that Michael might physically assault Henry. On top of these reports, Michael" }, { "docid": "22566908", "title": "", "text": "party.” Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir.2008). Thus, summary judgment is only appropriate if, viewing all facts and inferences drawn from them in the light most favorable to the nonmoving party, the nonmoving party has failed to present “sufficient evidence to permit a reasonable jury” to find in the nonmoving party’s favor. Lindsay v. Yates, 578 F.3d 407, 416 (6th Cir.2009). If a reasonable jury could find for the nonmoving party, summary judgment is “inappropriate.” Cockrel v. Shelby Cty. Sch. Dist, 270 F.3d 1036, 1056 (6th Cir.2001). Here, the majority concludes that no reasonable jury could find that Appellee’s stated reason for firing Appellant was pretextual. The majority focuses on the “honest belief’ rule, that is, that an employer’s honestly-held belief that it has a legitimate and non-discriminatory reason for firing a person is sufficient, even if the factual basis of said belief is later shown to be false. While this Court does not require that an investigation “be optimal or that it left no stone unturned,” Smith v. Chrysler Corp., 155 F.3d 799, 807-08 (6th Cir.1998), an employer must demonstrate that it “reasonably relied on the particularized facts that were before it at the time the decision was made.” Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir.2001). When an employer’s decision-making process is “unworthy of credence,” or where error on the part of the employer is “too obvious to be unintentional,” reliance on such a process does not constitute an “honest belief.” Smith v. Chrysler Corp., 155 F.3d 799, 807-08 (6th Cir.1998). In the summary judgment context as it relates to the “honest belief’ rule, the court should look to determine whether “sufficient evidence [exists] to permit a reasonable jury” to find that the employer did not have an “honest belief’ based on an investigation that is “unworthy of credence.” If “the evidence is susceptible of different interpretations or inferences by the trier of fact,” summary judgment is “inappropriate.” Cockrel, 270 F.3d at 1056. Thus, whether the court finds “that CBT made a reasonably informed and considered decision before terminating" }, { "docid": "22566898", "title": "", "text": "the employer’s proffered reason ... [and] consists of showing that the employer did not actually have cause to take adverse action against the employee based on its proffered reason, and thus, that the proffered reason is pretex-tual. Where the employer can demonstrate an honest belief in its proffered reason, however, the inference of pretext is not warranted. Thus, this Circuit has adopted the “honest belief rule.” Under [this] rule, an employer’s proffered reason is considered honestly held where the employer can establish it reasonably reli[ed] on particularized facts that were before it at the time the decision was made. Thereafter, the burden is on the plaintiff to demonstrate that the employer’s belief was not honestly held. An employee’s bare assertion that the employer’s proffered reason has no basis in fact is insufficient to call an employer’s honest belief into question, and fails to create a genuine issue of material fact. Joostberns, 166 Fed.Appx. at 791 (citations and internal quotation marks omitted). The ground rules for application of the honest belief rule are clear. A plaintiff is required to show “more than a dispute over the facts upon which the discharge was based.” Braithwaite v. Timken Co., 258 F.3d 488, 493-94 (6th Cir.2001). We have not required that the employer’s decision-making process under scrutiny “be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.” Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir.1998). Furthermore, “the falsity of [a] [defendant's reason for terminating [a] plaintiff cannot establish pretext as a matter of law” under the honest belief rule. Joostberns, 166 Fed.Appx. at 794 (footnote omitted). As long as the employer held an honest belief in its proffered reason, “the employee cannot establish pretext even if the employer’s reason is ultimately found to be mistaken, foolish, trivial, or baseless.” Smith, 155 F.3d at 806; see also Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir.2001). An employer’s invocation of the honest belief rule does not automatically shield it, because" }, { "docid": "1548022", "title": "", "text": "826, 839 (6th Cir. 2012) (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009)); see also Smith v. Chrysler Corp., 155 F.3d 799, 805-06 (6th Cir. 1998) (reciting same standard in ADA case). This circuit has employed a version of the “honest belief’ rule with regard to pretext. The formulation used provides that as long as the employer honestly believed the reason it gave for its employment action, an employee is not able to establish pretext even if the employer’s reason is ultimately found to be mistaken. See Smith, 155 F.3d at 806; see also Tingle v. Arbors at Hilliard, 692 F.3d 523, 531 (6th Cir. 2012) (citing Smith for the honest belief rule). “[T]he focus of a discrimination suit is on the intent of the employer,” so “[i]f the employer honestly, albeit mistakenly, believes in the non-discriminatory reason it relied upon' in making its employment decision, then the employer arguably lacks the necessary discriminatory intent.” Id. But to prove that the offered, non-discriminatory basis for the employment action is “honestly held,” “the employer must be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.” Id. at 807. Once the employer shows that it “made a reasonably informed and considered decision before taking an adverse employment action,” “the employee has the opportunity to produce proof to the contrary.” Id. (internal quotation marks omitted). Ferrari has failed to present evidence creating a dispute of material fact as to whether the RMI apprenticeship decision-makers honestly believed that his restrictions reflected a reasonable medical judgment. Dr. Brewer imposed Ferrari’s restrictions, but she was not the final decision-maker with regard to the RMI apprenticeship. Rather, it was Teman and Shaver who made this decision. Ferrari also failed to present evidence creating a dispute of material fact as to whether Dr. Brewer herself honestly believed that he was using opioids or honestly believed that the opioids could affect his performance, creating a danger to him and other employees. Dr. Brewer’s evaluation of Ferrari’s opioid use was thorough. She conducted" }, { "docid": "22566899", "title": "", "text": "is required to show “more than a dispute over the facts upon which the discharge was based.” Braithwaite v. Timken Co., 258 F.3d 488, 493-94 (6th Cir.2001). We have not required that the employer’s decision-making process under scrutiny “be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.” Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir.1998). Furthermore, “the falsity of [a] [defendant's reason for terminating [a] plaintiff cannot establish pretext as a matter of law” under the honest belief rule. Joostberns, 166 Fed.Appx. at 794 (footnote omitted). As long as the employer held an honest belief in its proffered reason, “the employee cannot establish pretext even if the employer’s reason is ultimately found to be mistaken, foolish, trivial, or baseless.” Smith, 155 F.3d at 806; see also Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir.2001). An employer’s invocation of the honest belief rule does not automatically shield it, because the employee must be afforded the opportunity to produce evidence to the contrary, such as an error on the part of the employer that is “too obvious to be unintentional.” Smith, 155 F.3d at 807 (citations and internal quotation marks omitted). CBT contends, and the district court agreed, that it has shown that it reasonably relied upon particularized facts in determining that Seeger committed disability fraud and, therefore, given Seeger’s lack of evidence disputing its honest belief, summary judgment in its favor was appropriate. Viewing the evidence in the light most favorable to Seeger, we, too, conclude that CBT made a “reasonably informed and considered decision” before it terminated him, and Seeger has failed to show that CBT’s decision-making process was “unworthy of credence.” Id. at 808. In arguing that CBT’s reason for termination was pretextual, Seeger contends that CBT willfully ignored medical evidence in its possession that he was responding to treatment and his pain level had improved well before he attended Oktoberfest. He maintains that CBT should have gleaned from his medical records" }, { "docid": "4847347", "title": "", "text": "to show that the employer’s stated reason for termination is pretextual is required to show by a preponderance of the evidence either (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate his [or her] discharge, or (3) that they were insufficient to motivate discharge.” Niswander, 529 F.3d at 728 (citation and internal quotation marks omitted). Plaintiff argues that he has demonstrated that his termination had no basis in fact. First, Plaintiff testified under oath that he never accessed any pornographic websites while employed at Hoops. Second, Plaintiff has proffered the sworn testimony of several witnesses, including the alleged victim of the sexual harassment Breshetta Clark, that they never witnessed Plaintiff viewing pornography at work. Third, Plaintiff produced evidence that it was common for multiple employees to use the shared engineering computer under a different employee’s username if that employee failed to properly log off the computer. Thus, Plaintiff has proffered sufficient evidence to create a fact question as to whether Defendant’s legitimate nondiscriminatory reason for terminating Plaintiff had a basis in fact. Defendant asserts that Plaintiffs ability to demonstrate that he did not view the pornographic images on the shared engineering computer is irrelevant under the “honest belief rule.” See Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir.2001). Under the honest belief rule, “as long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect.” Id. Although Defendant asserts a correct statement of the law, the loss of the hard drive containing the information relating to Plaintiffs viewing of pornography precludes Defendant’s reliance on the honest belief rule as a matter of law. As noted by the Sixth Circuit, “for an employer to avoid a finding that its claimed nondiscriminatory reason was pretextual, ‘the employer must be able to establish its reasonable reliance on the particularized facts before it at the time the decision was made.’ ” Wright v. Murray Guard, Inc.," }, { "docid": "16012102", "title": "", "text": "affidavits of five former Spectrum employees attesting that Dr. Griffis gave directives in supervisor and manager meetings that anyone on medical leave should be fired and that their jobs should not be held open; the uncertainty whether Till’s position was eliminated because of a RIF as Spectrum stated in her termination letter or whether Till was terminated for violating company policies as Spectrum now argues; and the fact that the decision to terminate Till occurred after she began her leave of absence, this Court concludes that material issues of fact exist whether Spectrum’s stated reasons for terminating Till were a mere pretext for disability discrimination. c. Spectrum Cannot Rely on the Honest Belief Rule Spectrum argues that Till’s arguments are insufficient to raise an issue of material fact because of the “honest belief’ or “business judgment” rule, which holds that an employer is not liable for employment discrimination “as long as [it] has an honest belief in its proffered nondiscriminatory reason.” Michael v. Caterpillar Fin. Services Corp., 496 F.3d 584, 598 (6th Cir.2007). To rely on this rule, “the employer must be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.” Wright v. Murray Guard, Inc., 455 F.3d 702, 708 (6th Cir.2006). The key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.... Although courts should resist attempting to micro-manage the process used by employers in making their employment decisions, neither should they blindly assume that an employer’s description of its reasons is honest. When the employee is able to produce sufficient evidence to establish that the employer failed to make a reasonably informed and considered decision before taking its adverse employment action ... then any reliance placed by the employer in such a process cannot be said to be honestly held. Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir.1998). Till has produced sufficient evidence that Spectrum failed to make a reasonably informed and considered decision before terminating her employment and thus cannot shield itself from liability" }, { "docid": "16967446", "title": "", "text": "a tool to assist in the Court in addressing the ultimate inquiry: “did the employer fire the employee for the stated reason or not?” Chen v. Dow Chem. Co., 580 F.3d 394, 400 n. 4 (6th Cir.2009). “[A] case alleging unlawful retaliation is not a vehicle for litigating the accuracy of the employer’s grounds for termination. Instead, the employee also must offer some evidence that not only were the employer’s reasons false, but that retaliation was the real reason for the adverse action.” Tingle v. Arbors at Hilliard, 692 F.3d 523, 530 (6th Cir.2012). 1. Proffered reason has no basis in fact An employer may avoid a finding that its proffered nondiscriminatory reason was pretextual by invoking the honest belief rule. This requires the employer to “establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.” Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir.1998). In determining whether an employer reasonably relied on the particularized facts then before it, courts “do not require that the decisional process used by the employer be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably info:rmed and considered decision before taking an adverse employment action.” Wright v. Murray Guard, Inc., 455 F.3d 702, 708 (6th Cir.2006). “As long as the employer held an honest belief in its proffered reason, the employee cannot establish pretext even if the employer’s reason is ultimately found to be mistaken, foolish, trivial, or baseless.” Seeger, 681 F.3d at 285-86. To prove pretext, the employee must allege “more than a dispute over the facts upon which the discharge was based. He must put forth evidence which demonstrates that the employer did not ‘honestly believe’ in the proffered non-discriminatoxy reason for its adverse employment action.” Braithwaite v. Timken Co., 258 F.3d 488, 493-94 (6th Cir.2001). If the employee is able to “produce sufficient evidence to establish that the employer failed to make a reasonably informed and considered decision before taking its adverse employment action, thereby making its decisional process ‘unworthy of" }, { "docid": "1548021", "title": "", "text": "genuine dispute of material fact as to pretext, as explained below. Dr. Brewer’s stated reason for imposing restrictions on Ferrari was his opioid use, and Ford temporarily bypassed Ferrari for the RMI position because of these restrictions. Ferrari’s restrictions— and the medical condition underlying them — are a legitimate, nondiscriminatory explanation for Ford’s adverse employment decision. The burden thus shifts to Ferrari, who “must introduce evidence showing that [Ford’s] proffered explanation is pretextual.” Monette, 90 F.3d at 1186. To survive a motion for summary judgment, Ferrari need not definitively prove that Ford’s reason is pretextual, but rather “must prove only enough to create a genuine issue as to whether the rationale is pretextual.” Whitfield, 639 F.3d at 260. “Under the law of our circuit, a plaintiff can show pretext in three interrelated ways: (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the employer’s action, or (3) that they were insufficient to motivate the employer’s action.” Romans v. Mich. Dep’t of Human Servs., 668 F.3d 826, 839 (6th Cir. 2012) (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009)); see also Smith v. Chrysler Corp., 155 F.3d 799, 805-06 (6th Cir. 1998) (reciting same standard in ADA case). This circuit has employed a version of the “honest belief’ rule with regard to pretext. The formulation used provides that as long as the employer honestly believed the reason it gave for its employment action, an employee is not able to establish pretext even if the employer’s reason is ultimately found to be mistaken. See Smith, 155 F.3d at 806; see also Tingle v. Arbors at Hilliard, 692 F.3d 523, 531 (6th Cir. 2012) (citing Smith for the honest belief rule). “[T]he focus of a discrimination suit is on the intent of the employer,” so “[i]f the employer honestly, albeit mistakenly, believes in the non-discriminatory reason it relied upon' in making its employment decision, then the employer arguably lacks the necessary discriminatory intent.” Id. But to prove that the offered, non-discriminatory basis for the employment action is “honestly" }, { "docid": "23344221", "title": "", "text": "F.2d 104, at *5 (6th Cir.1989) (Table) (concluding that defendant’s assertion that its mistake in failing to hire plaintiff constituted a legitimate non-discriminatory reason). Given that Fletcher and Green were promoted based on faulty performance ratings, not known until discovery, and that Upshaw failed to rebut this testimony, Ford successfully met its burden of establishing a legitimate non-discriminatory reason for not granting Upshaw an in-series promotion between 2003 and 2005. 3. Pretext A plaintiff may establish that an employer’s stated reason for its employment action was pretextual by showing that the reason (1) had no basis in fact, (2) did not actually motivate the challenged conduct, or (3) is insufficient to explain the challenged conduct. Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir.1994). The plaintiff must produce “sufficient evidence from which the jury could reasonably reject [the defendants’] explanation and infer that the defendants intentionally discriminated against him.” Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir.2003) (alteration in original). “The jury may not reject an employer’s explanation ... unless there is a sufficient basis in the evidence for doing so.” Manzer, 29 F.3d at 1083. If the employer had an honest belief in the proffered basis for the adverse employment action, and that belief arose from reasonable reliance on the particularized facts before the employer when it made the decision, the asserted reason will not be deemed pretextual even if it was erroneous. See Sybrandt v. Home Depot, U.S.A., Inc., 560 F.3d 553, 559 (6th Cir.2009) (quoting Majewski v. Auto. Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir.2001) (noting that “as long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect”)). Upshaw argues that Ford’s error in its EEOC response and its changing defense for Fletcher’s and Green’s promotions are evidence that its claim of “mistake” is pretext for discrimination. She asserts that the fact that Ford changed its original defense before the EEOC — that Fletcher and" }, { "docid": "22574930", "title": "", "text": "in the light most favorable to the nonmov-ing party, Wright’s assertion regarding his replacement suffices to sustain a prima facie case. b.Legitimate, Nondiscriminatory Reason Murray Guard’s claimed nondiscriminatory reasons for terminating Wright’s employment are threefold: the sexual harassment allegations against Wright, Wright’s job performance issues, and Wright’s failure to follow procedures. In addition to the alleged sexual harassment, Wright ignored, from July 7 through July 11 of 2003, a direct order to staff a post with an additional security officer, and he failed, on July 22, 2003, to follow the proper procedure for sounding the take-cover alarm. These constitute legitimate, nondiscriminatory reasons for Wright’s termination because they are reasons, supported by admissible evidence, “which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” Hicks, 509 U.S. at 507, 113 S.Ct. 2742 (citing Burdine, 450 U.S. at 254-55, 101 S.Ct. 1089 & n. 8). c.Pretext “Pretext may be shown ‘either directly by persuading the [trier of fact] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.’ ” Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1082 (6th Cir.1994) (quoting Burdine, 450 U.S. at 256, 101 S.Ct. 1089). Under the “honest belief’ rule developed by the Seventh Circuit, “so long as the employer honestly believed in the proffered reason,” an employee cannot prove pretext even if the employer’s reason in the end is shown to be “mistaken, foolish, trivial, or baseless.” Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir.1998) (citing, inter alia, Kariotis v. Navistar Int'l Trans. Corp., 131 F.3d 672, 676 (7th Cir.1997)). We have rejected the Seventh Circuit’s bare “honest belief’ doctrine and instead have adopted a modified honest-belief approach. Id. (holding that “[t]o the extent the Seventh Circuit’s application of the ‘honest belief rule credits an employer’s belief without requiring that it be reasonably based on particularized facts rather than on ignorance and mythology, we reject its approach”). Under this approach, for an employer to avoid a finding that its" }, { "docid": "23078650", "title": "", "text": "a 90-day performance plan and continue in her current position or reject the plan and relinquish her managerial responsibilities. After electing to accept the performance plan, Michael met again with Rezaii and Sweeney to go over the performance plan on January 29. Michael asserts that the proffered grounds for imposing the performance plan were “baseless” and that the plan was instead imposed as a form of retaliation for the complaints that she had filed. She also alleges that Henry improperly monitored her work performance during the plan period. Because monitoring was part and parcel of the performance plan, however, this allegation does not constitute a separate disciplinary action. Caterpillar’s proffered reason for imposing the performance plan was not simply the pending complaints against Michael, but was also based on what had been uncovered as a result of Sweeney’s investigation. In other words, Caterpillar asserts that it “investigated those complaints and took action consistent with its investigation.” We initially note that Michael’s principal objection to many of the investigative findings was that they were based on hearsay. As this court recently explained under similar circumstances, however, witness statements contained in an investigative report may be considered on summary judgment “not to prove their truth, ... but to demonstrate the state of mind and motive of Defendant’s managers in discharging Plaintiff.” Haughton, 206 Fed.Appx. at 532. Furthermore, Michael’s disagreement with the facts uncovered in Caterpillar’s investigation does not create a genuine issue of material fact that would defeat summary judgment “as long as an employer has an honest belief in its proffered nondiscriminatory reason.” Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir.2001). The key inquiry in assessing whether an employer holds such an honest belief is “whether the employer made a reasonably informed and considered decision before taking” the complained-of action. Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir.1998). An employer has an honest belief in its rationale when it “reasonably relied on the particularized facts that were before it at the time the decision was made.” Majewski, 274 F.3d at 1117 (citation and quotation marks" }, { "docid": "23344222", "title": "", "text": "there is a sufficient basis in the evidence for doing so.” Manzer, 29 F.3d at 1083. If the employer had an honest belief in the proffered basis for the adverse employment action, and that belief arose from reasonable reliance on the particularized facts before the employer when it made the decision, the asserted reason will not be deemed pretextual even if it was erroneous. See Sybrandt v. Home Depot, U.S.A., Inc., 560 F.3d 553, 559 (6th Cir.2009) (quoting Majewski v. Auto. Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir.2001) (noting that “as long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect”)). Upshaw argues that Ford’s error in its EEOC response and its changing defense for Fletcher’s and Green’s promotions are evidence that its claim of “mistake” is pretext for discrimination. She asserts that the fact that Ford changed its original defense before the EEOC — that Fletcher and Green were rated “Excellent Plus” — with its later claim that the two men were promoted accidentally, shows “repeated and intentional mendacity, which the jury could conclude is evidence of discrimination.” (Upshaw Reply Br. 5.) However, Upshaw’s own speculation that Ford knowingly violated its own internal procedures, unsupported by any allegation of fact, is not enough. See Brennan v. Tractor Supply Co., 237 Fed.Appx. 9, 19-20 (6th Cir.2007) (“[M]ere conjecture that [the] employer’s explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment. ... [A] court may not reject an employer’s explanation [of its action] unless there is sufficient basis in the evidence for doing so.”) (internal citations omitted). Further, regardless of whether Brooks’s claim of mistake is legitimate, Upshaw’s evidence does not establish that discrimination was the real reason for Ford’s action. See Samadi v. Ohio Bureau of Employment Servs., 48 Fed.Appx. 573, 575 (6th Cir.2002) (finding that employee failed to establish that employer’s reasons for hiring someone other than plaintiff were pretext when the hired individual “had" } ]

[ { "docid": "7628938", "title": "", "text": "of the alleged discriminatory event. See 29 C.F.R. § 1614.105(a)(1). A plaintiffs administrative complaint is untimely unless it is brought within the 45-day limitations period, or unless the plaintiff establishes a basis for equitable tolling. See id. § 1614.107(b). After investigating plaintiffs’ complaints, the PCC rejected them as untimely. The Canal Commission had amended the benefit policies in question in 1976, 1979, and 1989. The plaintiffs, all of whom became citizens between 1977 and 1994, received notice that they were not entitled to the benefits on various dates ranging from July 13, 1977 to July 7, 1994. See PCC Stmt, of Material Facts (R. 16). None brought a complaint within 45 days of either the amendments or the notice; the first complaint was not brought until June 2, 1995. On that basis, the PCC concluded plaintiffs’ administrative complaints were filed too late. The plaintiffs respond that their complaints allege continuing violations of Title VII, actionable upon receipt of each paycheck. We agree. As a unanimous Supreme Court said in Bazemore v. Friday, “[ejach week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior” to the limitations period. 478 U.S. 385, 395, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986) (Brennan, J., concurring, joined by all other Members of the Court). The Courts of Appeals have repeatedly reached the same conclusion. The Canal Commission bases its contrary position on a line of Supreme Court cases beginning with United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). In Evans, defendant had discriminatorily dismissed the plaintiff in 1968, pursuant to a policy barring married female flight attendants. When it rehired plaintiff in 1972 after changing the policy, it did not give her any seniority credit for her earlier service. Suing in 1973, plaintiff conceded that a claim for her 1968 dismissal was untimely, but contended that the seniority system impermis-sibly gave present effect to that past act of discrimination. The Court held the challenge to defendant’s neutral" } ]

[ { "docid": "5923929", "title": "", "text": "— was simply “the present consequence” of a time-barred act of discrimination: hiring the plaintiff at a discriminatory initial wage rate. Id. at 448; see also United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). The district court found that the plaintiff had proven intentional discrimination in her initial wage assignment, but it agreed with the defendant that the claim was time-barred. A panel of this court reversed. Relying on Bazemore and on our own version of the “continuing violations” doctrine, the panel reasoned that “[w]hen the claim is one for discriminatory wages, the violation exists every single day the employee works [for the wages she challenges as unlawful].” Calloway, 986 F.2d at 448-49 (citing Bazemore, 478 U.S. at 396, n. 6, 106 S.Ct. at 3006, n. 6.). Thus, the defendant “discriminated against [the plaintiff] not only on the day that it offered her less than her white predecessor, but also on every day of her employment.” Id. (citing Bazemore, 478 U.S. at 395, 106 S.Ct. at 3006 (“Each week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII ....”)). Ledbetter argues that because the plaintiff in Calloway was allowed to prove her claim based on the intentional discrimination reflected in her initial wage assignment, she should be allowed to do the same; if she can prove intentional discrimination in any pay decision during her career, even the setting of her initial salary, she can effectively borrow that intent and impute it to the paychecks she received during the limitations period. Cal-loway, however, did not involve, as this case does, an employee whose pay had been reviewed and re-established over a dozen times. There is no indication in the opinions of the district court or the panel in Calloway that the employer had in place any sort of system like Goodyear’s, giving the plaintiff regular opportunities to complain of improperly deflated pay and to seek a raise. Indeed, there is no indication that any decisions were made about the Calloway" }, { "docid": "22248620", "title": "", "text": "at 912 n. 5, 109 S.Ct. 2261. However, this line of cases does not bar claims based on conduct which is alleged to have “continued to discriminate unlawfully each time it was applied.” Anderson v. Zubieta, 180 F.3d 329, 336 (D.C.Cir.1999). Here, Cardenas alleges the decision not to promote him, or increase his wage level to one appropriate to his skills, was made on an ongoing basis. The facially-neutral-system analysis of Evans, Ricks, and Lorance is thus inapposite. A more pertinent Supreme Court decision is Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986), where the Court reversed the dismissal of a Title VII disparate pay claim on statute of limitations grounds and held that each of plaintiffs’ pay checks constituted a distinct violation of their right to nondiscriminatory compensation. The Court stated that the limitations defense could not be based on the ground that the disparities stemmed from discriminatory policies pre-dating the effective date of Title VII, explaining: that the [employer] discriminated with respect to salaries prior to the time it was covered by Title VII does not excuse perpetuating that discrimination after [it] became covered by Title VII.... A pattern or practice that would have constituted a violation of Title VII, but for the fact that the statute had not yet become effective, became a violation upon Title VII’s effective date, and to the extent an employer continued to engage in that act or practice, it is liable under that statute.... Each vveek’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VII. Bazemore, 478 U.S. at 395-96, 106 S.Ct. 3000 (third emphasis added) Thereafter, in Miller v. Beneficial Management Corp., 977 F.2d 834 (3d Cir.1992), a case brought under the Equal Pay Act rather than Title VII, this court came to a similar conclusion. We held that the statute of limitations for an EPA claim began to run on the date the plaintiff received her last" }, { "docid": "8162719", "title": "", "text": "issued to her male counterpart constitutes a new discriminatory action for purposes of Equal Pay Act limitations accrual. Nealon, 958 F.2d at 591. “We hold ... that Nealon’s Equal Pay Act claim is not barred by the statute of limitations because she asserts a continuing violation. This continuing violation theory is equally applicable to Title VII.” Nealon, 958 F.2d at 590 n. 4. Instrumental in our determination in Nealon was the Supreme Court’s treatment of the issue of separate paychecks in Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986). Nealon, 958 F.2d at 591. In determining that the continuing violation principle that applies under Bazemore to race discrimination violations of Title VII applies also to sex discrimination allegations under the Equal Pay Act, we did not rely on or discuss the fact that Nealon’s male counterpart was still employed during the limitations period. That was not the operative fact in the decision. Rather, we characterized the plaintiff’s paychecks as continuing violations of the Act. The focus of our analysis was the plaintiff, i.e., the victim of the employer’s discrimination, and the employer’s actions with regard to the plaintiff. Had Nealon’s male counterpart left his job before or during Nealon’s court action, there is no indication that we would have rendered an opposite verdict. An opposite verdict, in effect, would suggest that Nealon was no longer being discriminated against because, even though she was being paid the same low wages, there was no longer anyone to whom she could be compared. Such an analysis would allow employers to evade the purpose of the Equal Pay Act by terminating more highly paid male employees and retaining their lesser paid female employees at the discriminatory pay rate. In Brewster, we held that the statute of limitations did not bar Brewster’s Equal Pay Act claim, and that the defendants’ refusal to pay Brewster the same salary as that received by male correctional officers certified in 1975 constituted a continuing violation up to the last day of her employment. Brewster, 788 F.2d at 993 (citing Jenkins, 635 F.2d at 312)." }, { "docid": "21355523", "title": "", "text": "possible employment practices, however, has long since expired. Accordingly, relying on our prior decision in Pallas, Hulteen points us to the third alternative employment practice in 1994 when AT & T declined to grant retroactive NCS credit for pre-PDA pregnancy leave before it calculated her retirement benefits. Accepting Hulteen’s argument that such calculation in 1994 constituted a new and current violation of Title VII, the majority holds that her Title VII action is timely. In so concluding, the majority perpetuates Pallas’s error by breathing new life into an expired sex discrimination claim. On virtually identical facts, the Seventh Circuit reached the opposite conclusion in Ameritech. Because I believe the Seventh Circuit’s decision faithfully applies controlling Supreme Court precedents and the relevant provisions of Title VII, I would follow that court’s reasoning. Ill “The outcome of this case,” as the Seventh Circuit recognized, “turns on which of two competing lines of authority provide a better ‘fit’ here.” Ameritech, 220 F.3d at 822. The Seventh Circuit followed United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), and its progeny. In Pallas, on the other hand, this court followed Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986) (per curiam). Because the majority follows Pallas today, the Bazemore and Evans line of cases deserve careful attention. A In Bazemore, the North Carolina Agricultural Extension Service (“Service”) maintained two separate, racially segregated work forces and paid black employees less than white employees prior to the enactment of Title VII. 478 U.S. at 390-91, 106 S.Ct. 3000 (Brennan, J., joined by all other Members of the Court, concurring in part). After the enactment of Title VII, the Service integrated the workforce, but the pay disparity between black employees and white employees in the same positions remained. Id. The Supreme Court held that the Service was not liable for the discriminatory acts that occurred prior to the enactment of Title VII and therefore “recovery may not be permitted for [pre-Title VII] acts of discrimination.” Id. at 395, 106 S.Ct. 3000. However, the Supreme Court concluded that" }, { "docid": "22122368", "title": "", "text": "would alter this Court’s previous ruling. Instead, plaintiff merely contends that it would be manifest injustice for this Court to deny plaintiff leave to amend, even though plaintiff never indicated any desire to amend her Complaint until after this case was dismissed. Plaintiffs proposed amended complaint offers facts that plaintiff was well aware of before she filed her original Complaint and before this Court entered its dismissal order, and plaintiff has offered no excuse for failing to bring this evidence forward prior to the Court’s decision on defendant’s Motion to Dismiss. Plaintiffs proposed amended complaint also asserts a new legal argument in support of her property claim based on law existing at the time of defendant’s Motion to Dismiss. It is well established that plaintiff cannot resuscitate her case post-dismissal by alleging facts or legal theories that were available to her at the inception of her case. See Wright & Miller § 2810.1 at 127-28 (Rule 59(e) motions “may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment”). 1. Withholding of Personal Property First, plaintiff proposes to amend her retaliation claim based on the alleged continued withholding of her personal property to add more detail in order to demonstrate that the alleged property deprivation continues up to the time that plaintiff filed her initial Complaint. However, in the opinion granting defendant’s Motion to Dismiss, this Court noted that even if defendant “continued still” to withhold her property, the fact that the employer refused to remedy the alleged discrimination “does not convert the act into a new act of discrimination.” Mem. Op. at 6. Therefore, plaintiffs attempt to reestablish this claim in her proposed amended com plaint by giving more detail about the timing of the alleged property violation does not save this claim from dismissal. Plaintiff tries to justify restating this claim by citing Bazemore v. Friday, 478 U.S. 385, 395, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986) and Anderson v. Zubieta, 180 F.3d 329 (D.C.Cir.1990). The Court would first note that neither of" }, { "docid": "16495324", "title": "", "text": "(citations omitted). In determining whether ACIPCO’s policy constitutes a continuing violation, therefore, we must distinguish between the “present consequence of a one-time violation,” which does not extend the limitations period, and the “continuation of the violation into the present,” which does. See Webb v. Indiana National Bank, 931 F.2d 434, 438 (7th Cir.1991). The Supreme Court’s decisions in Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986), and Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), illustrate this fundamental distinction. In Baze-more, the plaintiffs were black employees of the North Carolina Agricultural Extension Service. Prior to 1965, the Extension Service was divided into two parallel branches: a white branch and a “Negro branch.” The black employees of the “Negro branch” were paid significantly less than their counterparts in the white branch. When the Extension Service was integrated, the salary disparities between black and white personnel were not completely eliminated. Bazemore, 478 U.S. at 390-91, 106 S.Ct. at 3004. The black employees filed suit against the Extension Service, claiming inter alia that the salary disparities violated Title VII. The Extension Service maintained that, because the disparities were solely the result of discrimination which occurred pri- or to Title VII’s effective date, it should not be required to affirmatively eliminate them. The Supreme Court squarely rejected this argument, holding that the Exten sion Service’s perpetuation of the salary disparities constituted a continuing violation of Title VII. “Each week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VII.” Id. at 395-96, 106 S.Ct. at 3006. The Supreme Court reached the opposite conclusion in Ricks. Ricks was a black Liberian who joined the faculty of Delaware State College in 1970. In 1973, the faculty committee on promotions recommended that Ricks be denied tenure. Following his request for reconsideration, the committee again recommended that Ricks not receive tenure. The college’s board of trustees formally denied tenure" }, { "docid": "9899099", "title": "", "text": "385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986), and Beavers v. American Cast Iron Pipe Co., 975 F.2d 792 (11th Cir.1992), to constitute a present violation, than the claims of a single discriminatory act followed by neutral, nondiscriminatory consequences as found in Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980); United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977); and Ross v. Buckeye Cellulose Corp., 980 F.2d 648 (11th Cir.1993). In Bazemore, the North Carolina Agricultural Extension Service had maintained two separate, racially segregated branches and paid black employees less than white employees. See 478 U.S. at 394, 106 S.Ct. at 3006. The Extension Service merged the two branches, but some pre-existing salary disparities remained. See id. Because these disparities resulted solely from discrimination that occurred prior to Title VIPs effective date, the Extension Service maintained that it should not be required to affirmatively eliminate them. See id. at 394-95, 106 S.Ct. at 3006. The Supreme Court rejected this argument, holding that the Extension Service’s perpetuation of the salary disparities constituted a continuing violation of Title VII. See id. at 395, 106 S.Ct. at 3006. “Each week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VII.” Id. at 395-96, 106 S.Ct. at 3006; see also Calloway, 986 F.2d at 448 (“Partners discriminated against Callo-way not only on the day that it offered her less than her white predecessor, but also on every day of her employment.”). Moreover, this court, in Beavers, held that a company’s policy that denied insurance coverage to children who did not reside with their employee-parent constituted a continuing violation because each week the company denied insurance coverage to divorced men’s nonresident children comprised a wrong actionable under Title VII. See 975 F.2d at 797-98. As in Bazemore and Beavers, plaintiffs assert West continued to violate Title VII by providing different levels of compensation to" }, { "docid": "22122370", "title": "", "text": "these cases is new law and thus plaintiffs attempt to raise this argument post-judgment is not a sufficient ground for reconsideration. Nevertheless, even considering the merits of plaintiffs new legal argument, her claim would fail, because the cited decisions are inapposite to the facts of this case. In Bazemore, the Supreme Court held that because the employer had a policy that provided disparate pay to black employees, Title VII was violated each time the employee was paid. Bazemore, 478 U.S. at 395-96. Similarly, in Anderson, the court, following the reasoning in Bazemore, found that the claim of disparate treatment under a benefits policy was timely because there was an act of discrimination each time payment of benefits was made pursuant to the policy. Anderson, 180 F.3d at 334-36. These cases thus stand for the proposition that when a discriminatory system is in place, each discriminatory act pursuant to that system is a new act of discrimination. Plaintiff does not allege, nor is there any evidence in the record of, a discriminatory system such as those in Bazemore and Anderson in this case. Plaintiff is merely arguing that defendant has failed to correct an alleged previous retaliatory action and plaintiff continues to feel its effects. As this Court explained in its Memorandum Opinion, the alleged continued withholding of plaintiffs personal property is simply an effect of the alleged discriminatory act on August 15, 1999 and does not state a current violation. See United Air Lines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977); Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). Accordingly, plaintiffs amended retaliation claim based on the alleged continued withholding of her personal property would not survive a motion to dismiss. Accordingly, since the Court finds no manifest injustice in its prior decision on this claim and since granting leave to amend would be futile, the Court finds no basis to vacate judgment under Fed.R.Civ.P. 59(e) or to grant leave to amend under Fed.R.Civ.P. 15. 2. Negative Job References Second, plaintiff proposes to amend her retaliation claim based" }, { "docid": "23514948", "title": "", "text": "reporting the fallen trailer door accident is timely. The disputed timeliness issue concerns the rejection of Elmenayer’s proposed accommodation to enable him to participate in Friday prayer sessions. This issue turns on whether that rejection, even if unlawful, is a continuing violation. If so, timeliness would be measured from the latest date when the employee was still prevented from observing his religious requirements in the way he had proposed. In that event, Elmenayer’s accommodation claim would be timely because his proposed accommodation remained unaccepted up to and including the date when he filed his EEOC complaint (and still remains unaccepted). On the other hand, if rejection of an employee’s proposed accommodation is not a continuing violation, timeliness would be measured from the date when the proposed accommodation was rejected. In that event, Elmenayer’s accommodation claim would be time-barred because his proposal was rejected on June 13,1996. No decision appears to have considered whether an employer’s allegedly unreasonable rejection of an employee’s proposed accommodation of his religious practices is a continuing violation. However, two decisions of the Supreme Court provide considerable guidance. In Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986), the Court ruled that each time an employer paid an employee less than other employees because of a discriminatory reason, the employer committed a separate unlawful employment practice. In Bazemore, the employer’s act of cutting each weekly pay check was deemed to give rise to a new claim of an unlawful employment practice. “Each week’s paycheck that delivered] less to a black than to a similarly situated white is a wrong actionable under Title VII ....” Id. at 395, 106 S.Ct. 3000. The clear message of Bazemore is that an employer performs a separate employment practice each time it takes adverse action against an employee, even if that action is simply a periodic implementation of an adverse decision previously made. In National Railroad Passenger Corporation v. Morgan, supra, the Court made two rulings pertinent to our pending issue. First, the Court unanimously ruled that “[ejach discrete discriminatory act starts a new clock for filing charges" }, { "docid": "22315251", "title": "", "text": "her position the first time and would be unlikely to do so a second time. Therefore, we hold that she is entitled to have her retaliation claim heard by the district court. IV. Nealon argues that her Equal Pay Act claim is not entirely barred by the three-year statute of limitations for willful violations. See 29 U.S.C. § 255(a) (1988). She contends that the violation at issue was continuing and therefore the accruing event was not uniquely the date of her GS-12 job classification, December 23, 1984, but rather every time she was paid. Furthermore, she contends that the period should be deemed equitably tolled. We consider each argument in turn. A. Nealon first argues that each issuance of her paycheck at a lower wage than her male counterpart received constituted a new discriminatory action for purposes of EPA limitations accrual. We agree. Instrumental in our determination is the Supreme Court’s treatment of the issue of separate paychecks in Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986) (per curiam). In that case, the Court held that sponsorship by the North Carolina Agricultural Extension Service of single-race clubs did not violate the Fourteenth Amendment where the racial imbalance was the result of the voluntary choice of private individuals. However, the Court also unanimously held that the Extension Service had a positive duty to eradicate salary disparities between white and black workers that had their origin prior to the date when Title VII was made applicable to public employees. Id. at 386, 106 S.Ct. at 3002. As Justice Brennan stated for the Court in explaining the per curiam opinion’s rationale: [T]hat the Extension Service discriminated with respect to salaries prior to the time it was covered by Title VII does not excuse perpetuating that discrimination after the Extension Service became covered by Title VII.... Each week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VII. Id. at 395-96, 106" }, { "docid": "22122369", "title": "", "text": "have been raised prior to the entry of judgment”). 1. Withholding of Personal Property First, plaintiff proposes to amend her retaliation claim based on the alleged continued withholding of her personal property to add more detail in order to demonstrate that the alleged property deprivation continues up to the time that plaintiff filed her initial Complaint. However, in the opinion granting defendant’s Motion to Dismiss, this Court noted that even if defendant “continued still” to withhold her property, the fact that the employer refused to remedy the alleged discrimination “does not convert the act into a new act of discrimination.” Mem. Op. at 6. Therefore, plaintiffs attempt to reestablish this claim in her proposed amended com plaint by giving more detail about the timing of the alleged property violation does not save this claim from dismissal. Plaintiff tries to justify restating this claim by citing Bazemore v. Friday, 478 U.S. 385, 395, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986) and Anderson v. Zubieta, 180 F.3d 329 (D.C.Cir.1990). The Court would first note that neither of these cases is new law and thus plaintiffs attempt to raise this argument post-judgment is not a sufficient ground for reconsideration. Nevertheless, even considering the merits of plaintiffs new legal argument, her claim would fail, because the cited decisions are inapposite to the facts of this case. In Bazemore, the Supreme Court held that because the employer had a policy that provided disparate pay to black employees, Title VII was violated each time the employee was paid. Bazemore, 478 U.S. at 395-96. Similarly, in Anderson, the court, following the reasoning in Bazemore, found that the claim of disparate treatment under a benefits policy was timely because there was an act of discrimination each time payment of benefits was made pursuant to the policy. Anderson, 180 F.3d at 334-36. These cases thus stand for the proposition that when a discriminatory system is in place, each discriminatory act pursuant to that system is a new act of discrimination. Plaintiff does not allege, nor is there any evidence in the record of, a discriminatory system such as those" }, { "docid": "21355479", "title": "", "text": "the limitations period”) (emphasis in original), and United Air Lines, Inc. v. Evans, 431 U.S. 553, 557-58, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) ). We found Lorance and Evans inapposite for two reasons. First, because the discriminatory program that gave rise to the lawsuit was instituted in 1987, Pallas’s claim “could not have been brought earlier.” Id. Second, we concluded that, unlike the facially neutral seniority credit policy in Evans, the net credit system used to calculate eligibility under the Early Retirement Opportunity is not facially neutral. The system used to determine eligibility facially discriminates against pregnant women. The system distinguishes between similarly situated employees: female employees who took leave prior to 1979 due to a pregnancy-related disability and employees who took leave prior to 1979 for other temporary disabilities. Id. at 1327. We therefore held, relying on Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986), that Pacific Bell’s decision to discriminate against Pallas in 1987 was actionable because “liability may be imposed” for a pre-Title VII discriminatory policy to the extent it is perpetuated in post-Title VII employment decisions. Pallas, 940 F.2d at 1327(citing Bazemore, 478 U.S. at 395, 106 S.Ct. 3000(Brennan, J., joined by all other Members of the Court, concurring in part) (“Each week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VII.”)). The Court recently reaffirmed Bazemore in Ledbetter v. Goodyear Tire & Rubber Co., — U.S. -, 127 S.Ct. 2162, 2172-74, 167 L.Ed.2d 982 (2007). The Court distinguished Bazemore on the basis of Ledbetter’s failure to show that her disparate treatment was the result of intentional discrimination during the charging period. Id. at 2174. The Court reiterated that “a freestanding violation may always be charged within its own charging period regardless of its connection to other violations.” Id. It explained Bazemore as holding: when an employer adopts a facially discriminatory pay structure that puts some employees on a lower scale because" }, { "docid": "6733297", "title": "", "text": "retaliatory compensation claims are timely, even though they are based to some extent on allegedly discriminatory salary increases and other events taking place outside of the limitations periods, because discriminatory compensation is a continuing violation. In Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986), the Supreme Court held that pas.t discriminatory compensation continuing to affect a plaintiffs current salary is actionable. The plaintiffs in Bazemore were employees of the North Carolina Agricultural Extension Service. Prior to the passage of the Civil Rights Act of 1964, the Extension Service maintained separate white and black branches. The branches merged in 1965, but some pay disparities between white and black employees remained at the time of the suit. The Extension Service argued that since Title VII did not become applicable to public employers until 1972, and since it stopped segregating employees in 1965, plaintiffs failed to state an actionable claim. The Court rejected the Service’s argument. It held that “[wjhile recovery may not be permitted for pre-1972 acts of discrimination, to the extent that this discrimination was perpetuated after 1972, liability may be imposed.” Bazemore, 478 U.S. at 395, 106 S.Ct. 3000. The Court explained that “[ejach week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VII.” Id. at 395-96, 106 S.Ct. 3000. The Fourth Circuit applied the Bazemore holding in Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336 (4th Cir.1994), a gender discrimination case. The defendant in Brinkley-Obu argued that the last act of discrimination alleged by the plaintiff occurred outside of the limitations period, and that the plaintiffs low salary was simply a continuing effect of that past discrimination. The Fourth Circuit, relying on Bazemore, rejected the defendant’s argument and held that the plaintiffs discriminatory, compensation was a continuing violation. Id. at 346-47. Bazemore and Brinkley-Obu involved claims under only Title VII. However, The Fourth Circuit has applied the continuing violation doctrine to § 1981 claims as well." }, { "docid": "19943588", "title": "", "text": "at 1107. Thus, “[a] discriminatory practice, though it may extend over time and involve a series of related acts, remains divisible into a set of discrete acts, legal action on the basis of each of which must be brought within the statutory limitations period.” Id. at 1108. Our conclusion that a discriminatory policy claim does not extend the statute of limitations finds support in Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986), in which the Supreme Court considered a pattern-or-practice challenge to a discriminatory salary structure. The Court noted that the plaintiffs’ salary discrimination claim did not accrue based on the existence of the policy or based on when the policy took effect. Instead, “[e]ach week’s paycheck that delivered ] less to a black than to a similarly situated white is a wrong actionable under Title VIL” Id. at 395, 106 S.Ct. 3000. Just as the wrong in Bazemore accrued each time the salary policy was implemented, the alleged wrong here occurred and accrued when the policy was invoked to deny an individual employee’s request. We also draw support from a persuasive opinion from the Second Circuit, the only other circuit to have considered the question of whether an employer’s rejection of a proposed accommodation can be a continuing violation. See Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130 (2d Cir.2003). The case involved a Muslim truck driver who sought an adjustment to his work schedule for religious reasons. His employer denied his request for time off during the work day, suggesting instead that Elmenayer bid on evening work assignments so that he would be free to attend religious services during the day. Id. at 132 Elmenayer sued, alleging that his employer unreasonably refused to accommodate his religious practices as required by Title VII. Id. at 133. It was undisputed that Elmenayer faked to file a charge with the EEOC within the statutory period. Elmenayer asserted, as the Employees do here, that his claims should be considered timely nonetheless because his requests were denied pursuant to a discriminatory policy and that the timeliness should" }, { "docid": "8162718", "title": "", "text": "v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). Evans involved a company policy that prohibited flight attendants from being married. That case did not involve a compensation scheme. The very nature of a compensation scheme necessitates the existence of a current violation with each pay period. The Supreme Court’s decision in Bazemore v. Friday, 478 U.S. 385, 395-96, 106 S.Ct. 3000, 3006, 92 L.Ed.2d 315 (1986), rather than the Evans decision, provides the relevant statement of the law with regard to discrimination in compensation under Title VII. Along with the Supreme Court, we have applied the doctrine of continuing discrimination to Title VII and Equal Pay Act compensation cases in which paychecks have been characterized as current or “continuing” violations. Nealon v. Stone, 958 F.2d 584, 592 (4th Cir.1992); Brewster v. Barnes, 788 F.2d 985, 993 (4th Cir.1986); and Jenkins v. Home Ins. Co., 635 F.2d 310, 312 (4th Cir.1980). We have held that each issuance of a paycheck to a female employee at a lower wage than that issued to her male counterpart constitutes a new discriminatory action for purposes of Equal Pay Act limitations accrual. Nealon, 958 F.2d at 591. “We hold ... that Nealon’s Equal Pay Act claim is not barred by the statute of limitations because she asserts a continuing violation. This continuing violation theory is equally applicable to Title VII.” Nealon, 958 F.2d at 590 n. 4. Instrumental in our determination in Nealon was the Supreme Court’s treatment of the issue of separate paychecks in Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986). Nealon, 958 F.2d at 591. In determining that the continuing violation principle that applies under Bazemore to race discrimination violations of Title VII applies also to sex discrimination allegations under the Equal Pay Act, we did not rely on or discuss the fact that Nealon’s male counterpart was still employed during the limitations period. That was not the operative fact in the decision. Rather, we characterized the plaintiff’s paychecks as continuing violations of the Act. The focus of our analysis was" }, { "docid": "3910098", "title": "", "text": "asked her supervisors about it, and was told they were looking for someone with a college degree. She dropped the matter there. Should an inquiry be equated to an application, and a discouraging answer to a rejection? We have our doubts; to answer these questions in the affirmative would encourage people to sue at the drop of a hat. But we need not resolve the issue, as it may well become moot on remand. There is one more loose end. In addition to complaining about being turned down for promotions, the plaintiff complains about being paid less than the white employees who received the promotions that she considers to have been rightfully hers. The disparity in pay persisted throughout the statute of limitations period; and Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986), holds that discrimination in pay (which is actionable under Title VII as well as under 42 U.S.C. §§ 2000e-2(a), 2(h); County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981); American Nurses’ Ass’n v. Illinois, 783 F.2d 716, 720-23 (7th Cir.1986)) is a continuing violation: “Each week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII.” 478 U.S. at 395, 106 S.Ct. at 3006. Yet how can this decision be reconciled with eases like Ricks, which hold that the act of discrimination, rather than the inev itable consequences of the act (in Baze-more, pay disparities resulting from a discriminatory compensation structure that had been adopted before Title VII was made applicable to public employers), starts the statute of limitations running? One possible answer is that Bazemore is a special case. The act of discrimination could not have been challenged when committed, because the statute was not yet applicable to it. The issue therefore was whether the amendment that brought the employer under the statute was intended to grandfather its discriminatory practices, and the Court thought not. But the plaintiff in our case could have challenged the acts that made the disparity in pay of which she" }, { "docid": "6452277", "title": "", "text": "sex.... In short, the system is neutral in its operation.” Id. In the case before us, the district court applied Evans and dismissed the complaints as time-barred stating that, “[l]ike United’s system, ALLETE’s current system is gender neutral.” (Appellant’s Addendum at 8.) We disagree. Unlike the plaintiff in Evans, the plaintiffs in this case have alleged that the pension plan is discriminatory and results in a present violation. As noted above, the absence of such an allegation was central to the Court’s analysis in Evans. Therefore, we find Evans to be inapposite to this case. In Bazemore, a case on which the plaintiffs rely, a government agricultural agency merged its segregated branches in response to the passage of Title VII. The integration, however, did not eliminate the salary disparities between white and black employees. The district court and the court of appeals held that there was no violation of Title VII because the salary disparities were the result of policies that existed prior to the passage of Title VII. The Supreme Court reversed, holding that “[e]ach week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VII.” Bazemore, 478 U.S. at 395-96, 106 S.Ct. 3000. The Court went on to distinguish Evans, noting that in that case the plaintiff “made no allegation that the seniority system itself was intentionally designed to discriminate.... Here, however, petitioners are alleging that in continuing to pay blacks less than similarly situated whites, respondents have not from the date of the Act forward made all [their] employment decisions in a wholly nondiscriminatory way.” Id. at 396 n. 6, 106 S.Ct. 3000 (internal quotations omitted). The plaintiffs in this case rely heavily on Bazemore and the Court’s language that each paycheck consists of a new discriminatory act. We, however, do not find Bazemore dispositive. First, the discriminatory pay structure in Bazemore was adopted prior to Title VII and the central issue in that case was whether the pay structure" }, { "docid": "11162285", "title": "", "text": "a single unlawful practice for the purpose of timely filing.”). Therefore, the statute of limitations on Tademe’s tenure claim began to run in 1996 when SCSU denied Tademe tenure because he failed to complete his Ph.D., even though the effects of that decision were felt much later. See slip op. at 7 (citing Delaware State Coll. v. Ricks, 449 U.S. 250, 256, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) (holding that the statute of limitations begins to run at “the time of the discriminatory acts, not [at] the time at which the consequences of the acts became most painful”) (emphasis in original)). Likewise, we agree with the district court that Tademe’s claim of discrimination in promotion was time-barred. Any allegedly discriminatory action by SCSU was a discrete act completed when Tademe received notice of his promotion in early 1998. See Morgan, 536 U.S. at 114, 122 S.Ct. 2061. (failure to promote is a discrete act and a charge must be filed within 180 or 300 days after it occurred). The only claim that Tademe arguably brings within the limitations period is his claim of salary discrimination. Although the recent Morgan decision held that discrete discriminatory acts such as termination, failure to promote, denial of transfer or refusal to hire are complete at the time they occur and start a new clock for the filling of charges, the Court made note of an earlier decision regarding pay discrimination, Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986) (per curiam) (Bazemore). See Morgan, 536 U.S. at 111-12, 122 S.Ct. 2061. In Bazemore, the Court held that an employer that paid black employees less than white employees violated Title VII, even though the discrimination began before the statute became effective, because “[e]ach week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII.” 478 U.S. at 395, 106 S.Ct. 3000. Thus, each allegedly discriminatory paycheck represented a new Title VII violation. Id. This circuit adopted this position as to all pre-Morgan salary discrimination claims in Ashley v. Boyle’s Famous" }, { "docid": "1859251", "title": "", "text": "of giving higher earnings increases to employees whose earnings levels were low relative to comparable employees and lower earnings increases to employees whose earnings levels were high relative to comparable employees (id. at 16-18, 29). Dr. Madden concluded that because women are systematically more likely than men to be below their expected pay levels, women were discriminated against when they did not receive a larger salary increase than men to correct for prior pay differentials (id. at 26-27). The Court is not persuaded that this approach avoids the Ledbetter limitation. Under Ledbetter, discrimination is not measured by a defendant’s failure to correct for a discrimination that may have occurred in the past, but by discriminatory decisions made during the relevant time period. Under Led-better, a decision by Allstate not to give women higher salary increases to correct for prior pay differentials would not constitute actionable discrimination. The Supreme Court’s opinion in Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986), does not change this analysis. In Bazemore, the Supreme Court held that the fact that the government employer discriminated with respect to salaries prior to the time the employer was covered by Title VII “does not excuse perpetuating that discrimination after the [employer] became covered by Title VII.” Id. at 395, 106 S.Ct. 3000. Further, the Court held that “[e]ach week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VII.” Id. at 395-96, 106 S.Ct. 3000. Ms. Puffer interprets Bazemore to mean that despite Ledbetter’s clear repudiation of a “paycheck accrual rule,” whereby each paycheck would trigger a new EEOC charging period, every paycheck Allstate issued to female managers was a separate act of discrimination (Pl.’s Class Cert. Mem. at 22; doc. #233: Pl.’s Resp. to Mot. to Strike Madden at 7). We disagree, because Bazemore involved a unique situation not present here. Unlike the case here, the employer’s compensation policy at issue in Bazemore had facially discriminated" }, { "docid": "11162286", "title": "", "text": "brings within the limitations period is his claim of salary discrimination. Although the recent Morgan decision held that discrete discriminatory acts such as termination, failure to promote, denial of transfer or refusal to hire are complete at the time they occur and start a new clock for the filling of charges, the Court made note of an earlier decision regarding pay discrimination, Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986) (per curiam) (Bazemore). See Morgan, 536 U.S. at 111-12, 122 S.Ct. 2061. In Bazemore, the Court held that an employer that paid black employees less than white employees violated Title VII, even though the discrimination began before the statute became effective, because “[e]ach week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII.” 478 U.S. at 395, 106 S.Ct. 3000. Thus, each allegedly discriminatory paycheck represented a new Title VII violation. Id. This circuit adopted this position as to all pre-Morgan salary discrimination claims in Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d 164, 168 (8th Cir.1995) (Ashley). In Ashley, we held that a plaintiff’s claim of salary discrimination based on sex was a continuing violation, noting “each week’s paycheck that delivers less to a woman than to a similarly situated man is a wrong actionable under Title VII.” Id. (quoting Bazemore, 478 U.S. at 385, 106 S.Ct. 3000). But see Dasgupta v. Univ. of Wis. Bd. of Regents, 121 F.3d 1138, 1140 (7th Cir.1997) (holding plaintiffs claim of salary discrimination was time-barred because “[t]here were no new violations during the limitations period, but merely a refusal to rectify the consequences of time-barred violations”). Although Morgan noted that Bazemore was a pattern-or-practice case which addressed a discriminatory salary structure, it did not overrule or expressly limit Baze-more to pattern-or-practice cases. Therefore, we will assume for the purposes of this analysis that Tademe’s claim of salary discrimination was timely because his EEOC charge was filed within 300 days of receiving allegedly discriminatory paychecks. In order to establish a prima facie case of salary discrimination" } ]

[ { "docid": "23365818", "title": "", "text": "refusal to plea). The district court did not err by concluding that Murphy failed to prove an unconstitutional motive. We also conclude, for reasons similar to those described above, that the government’s decision to withhold a § 5K1.1 motion was not arbitrary under Wade, 504 U.S. at 186, 112 S.Ct. at 1844. Maintaining the effectiveness of the plea negotiation process is a legitimate governmental interest. Enforcing threats made during that process is rationally related to advancing that interest. See United States v. Maddox, 48 F.3d 791, 796-97 (4th Cir.1995) (government could offer a § 5K1.1 motion to whichever defendant pled first, and deny it to the second, in order to expedite the plea bargaining process). Because the government filed no downward departure motion, and because the government withheld that motion neither arbitrarily nor on the basis of an unconstitutional motive, the district court properly concluded that it lacked authority to depart downward from the sentencing guidelines under § 5K1.1. AFFIRMED. . Our decision does not conflict with United States v. Khoury, 62 F.3d 1138 (9th Cir.1995). In that case, the majority stated: While it is undoubtedly true both that the government does not have to make a substantial assistance motion every time a defendant is cooperative and that the government may use the motion as a carrot to induce a defendant to make a plea, that is not what happened in this case. Here the government initially took the position at sentencing that the defendant had offered substantial assistance and made the appropriate motion, and then threatened to change its position to discourage the defendant from going to trial. Id. at 1140 (emphasis in original). The government then actually did change its position before the district court. Id. at 1139. The majority in Khoury concluded that under the unique circumstances of that case, the district cotut had authority tp depart downward. Id. at 1141. But see id. at 1143 (Fernandez, C.J., dissenting). In Murphy's case on the other hand, the government did only what the Khoury majority said it \"undoubtedly” could do: it offered Murphy a § 5K1.1 motion during" } ]

[ { "docid": "22869209", "title": "", "text": "file and that the court compel the government to file. The district court subsequently denied Moore’s motion to compel in its entirety, concluding that Moore signed a plea agreement that gave the United States sole discretion to decide if it would move for substantial assistance. At the sentencing hearing, Moore attempted to subpoena three unindicted co-conspirators to elicit both the time frame and content of their cooperation with the government. The district court quashed these subpoenas for failing to comply with procedural requirements and proceeded to consider Moore’s sentence. After increasing Moore’s offense level for more than minimal planning under U.S.S.G. § 2Bl.l(b)(4), the district court sentenced Moore to fifteen months imprisonment and ordered him to pay restitution to Downey Design International in the amount of $65, 569.73. Moore now appeals his sentence. II. A. Among a litany of claims, Moore asserts that the district court erred in denying his motion to compel the government to file a substantial-assistance downward departure motion under U.S.S.G. § 5K1.1. We review the district court’s interpretation of the Sentencing Guidelines de novo. See United States v. Jones, 159 F.3d 969, 980 (6th Cir.1998). The district court ruled that it could review a refusal by the United States to move for such a downward departure only when the defendant asserts that unconstitutional motives motivated the government’s decision not to file. See J.A. at 224. Moore claims that a court may review the government’s refusal to move for substantial assistance for both unconstitutional motives and bad faith, and that because the district court did not believe it could make a bad faith review, we should remand for re-sentencing. Section 5K1.1 of the Guidelines provides: Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines. U.S.S.G. § 5K1.1. While some circuits have ruled that courts may conduct a bad faith review of the government’s refusal to file a substantial assistance motion, see United States v. Knights, 968 F.2d 1483, 1487 (2d Cir.1992); United States" }, { "docid": "12085727", "title": "", "text": "in light of the facts presented at sentencing; and (4) the government’s arbitrary or bad faith refusal to file a section 5K1.1 motion after stipulating to Oransky’s significant cooperation violated Oransky’s right to due process. We reject each of Oransky’s claims. First, the government motion requirement in section 5K1.1 does not violate due process or separation of powers. United States v. Grant, 886 F.2d 1513, 1514 (8th Cir.1989). Second, just as 18 U.S.C. § 3553(e) (Supp. V 1987) requires a government motion before a defendant may receive a sentence less than a statutory minimum, section 5K1.1 requires a government motion before a defendant may receive either a downward departure to a statutory minimum sentence or, as here, any downward departure where there is no statutory minimum. See U.S.S.G. § 5K1.1 (Oct.1987); United States v. Coleman, 895 F.2d 501, 504 n. 5 (8th Cir.1990). Third, the stipulation made by Oransky and the government neither takes the place of a section 5K1.1 motion nor contains any government pledge to file a motion. See id. at 504-06. Fourth, the district court did not abuse its discretion by failing to grant Oransky a departure because, lacking a government motion, the court had no authority to depart. United States v. Smitherman, 889 F.2d 189, 191 (8th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1493, 108 L.Ed.2d 629 (1990). Finally, we need not consider Oransky’s claim of prosecuto-rial arbitrariness or bad faith because the issue was not presented to the district court. United States v. Creed, 897 F.2d 963, 965 (8th Cir.1990). Oransky also attacks the district court’s failure to require the government to establish by proof beyond a reasonable doubt all of the facts relevant to his sentence. Due process, however, demands only that the government’s proof preponderate, United States v. Sleet, 893 F.2d 947, 949 (8th Cir.1990), and the facts used in determining Oransky’s sentence satisfied this standard. Finally, Oransky contends the district court, which was fully aware of its discretion to depart downward, abused its discretion by failing to grant a downward departure in consideration of Oransky’s family circumstances. See U.S.S.G. § 5K2.0" }, { "docid": "22357712", "title": "", "text": "that the government would make a 5K1.1 motion and his attorney verified that this was the assumption. The plea agreement, however, provides only that the government would “consider” whether Forney’s aid qualified for substantial assistance and that this determination was “solely” that of the government. Rl-121-2. “[I]n both § 3553(e) and § 5K1.1 the condition limiting the court’s authority gives the Government a power, not a duty, to file a motion when a defendant has substantially assisted.” Wade, — U.S. at-, 112 S.Ct. at 1843. Forney further agreed not to challenge or appeal the government’s decision. Forney’s statutory sentence, absent a 5K1.1 motion, is stated accurately in the plea agreement, which also states that he will be sentenced under the Sentencing Guidelines. Forney’s attempt to allege bad faith by the government for not making a 5K1.1 motion is unavailing because he did not raise this objection with the district court at the sentencing proceeding. United States v. Jones, 938 F.2d 1541, 1547 (11th Cir.1991). The district court and, consequently, this court do not evaluate the assistance rendered by a defendant offering cooperation as a term of his plea agreement unless and until the government makes a 5K1.1 motion for downward departure based on substantial as-sistanee. See U.S.S.G. § 5Kl.l(a) (giving the factors to be considered by the sentencing court in evaluating a defendant’s assistance to determine an appropriate departure). Thus, the courts are precluded from intruding into prosecutorial discretion. See Wade, — U.S. at -, 112 S.Ct. at 1843. In contrast, judicial review is appropriate when there is an allegation and a substantial, showing that the prosecution refused to file a substantial assistance motion because of a constitutionally impermissible motivation, such as race or religion. Id. at-, 112 S.Ct. at 1843-44. No unconstitutional motive has been alleged in this case. On appeal, Forney additionally seeks refuge in the provision of the plea agreement, wherein the government agrees to present the extent of his cooperation and other mitigating circumstances at sentencing, to show a breach by the government. While this term was recited by the district court at the arraignment, our" }, { "docid": "14839361", "title": "", "text": "There appears to be no disagreement on the fact that shortly after his arrest and without the benefit of a plea agreement, Wade began a course of cooperation which provided valuable assistance to the government in other prosecutions, leading to the conviction of co-conspirators. Yet, with some disillusionment, he observes that the government made no comment about his cooperation at sentencing and refused to file a motion for a downward departure under U.S.S.G. § 5K1.1. Wade brought these facts to the attention of the district court in connection with his motion for a downward departure and sought unsuccessfully to inquire of the government why it refused to make the motion. He argues that such an inquiry would have been relevant to resolve whether the government acted arbitrarily or in bad faith. Limited authority to depart from mandatory minimum sentences is provided in 18 U.S.C. § 3553(e), which provides: Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code. See also 28 U.S.C. § 994(n) (“The Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed.”); U.S.S.G. § 5K1.1. Section 5K1.1 governs all departures from guideline sentencing for substantial assistance, and its scope includes departures from mandatory minimum sentences permitted by 18 U.S.C. § 3553(e). See Application Note 1 to § 5K1.1; United States v. Keene, 933 F.2d 711, (9th Cir.1991). The unambiguous language of 18 U.S.C. § 3553(e) leads to the single conclusion that courts may not depart downward from mandatory minimum sentences because of the substantial assistance of a defendant unless the government files a motion for departure. See, e.g., United States v. Francois, 889 F.2d 1341, 1345 (4th Cir.1989), cert. denied, — U.S. —, 110" }, { "docid": "22357713", "title": "", "text": "assistance rendered by a defendant offering cooperation as a term of his plea agreement unless and until the government makes a 5K1.1 motion for downward departure based on substantial as-sistanee. See U.S.S.G. § 5Kl.l(a) (giving the factors to be considered by the sentencing court in evaluating a defendant’s assistance to determine an appropriate departure). Thus, the courts are precluded from intruding into prosecutorial discretion. See Wade, — U.S. at -, 112 S.Ct. at 1843. In contrast, judicial review is appropriate when there is an allegation and a substantial, showing that the prosecution refused to file a substantial assistance motion because of a constitutionally impermissible motivation, such as race or religion. Id. at-, 112 S.Ct. at 1843-44. No unconstitutional motive has been alleged in this case. On appeal, Forney additionally seeks refuge in the provision of the plea agreement, wherein the government agrees to present the extent of his cooperation and other mitigating circumstances at sentencing, to show a breach by the government. While this term was recited by the district court at the arraignment, our review of the record convinces us that Forney’s dispute with the government regarding the plea agreement in district court concerned the government’s failure to make a 5K1.1 motion, and not this additional provision, paragraph 1(d), of the plea agreement. Notably, a judge on this panel had to cite this supplementary provision to Forney’s counsel at oral argument. As in Forney’s complaint concerning the government’s failure to make a 5K1.1 motion, no objection was made at the sentencing proceeding on the basis of this latter provision and this omission precludes our review. See Jones, 933 F.2d at 1547. Since Forney received a mandatory minimum sentence, we additionally note that the only possible further reduction in his sentence would have been through a 5K1.1 motion by the government. Therefore, remand for resentencing on this basis would have no effect on For-ney’s sentence. Nevertheless, we are troubled by the government’s failure to comport with a term of the plea agreement that it agreed to perform. Plea agreements are binding on the parties that enter into them. The government" }, { "docid": "14035112", "title": "", "text": "and affirm. I After pleading guilty to conspiracy with intent to distribute cocaine and possession with intent to distribute cocaine, defendant-appellant Guillermo Valentin Maldonado-Acosta was sentenced to 135 months imprisonment. He had assisted agents with a controlled delivery and entered into a plea agreement under which the government in its discretion could move the district court for a § 5K1.1 reduction. At sentencing, the government did not move for this reduction because Maldonado-Acosta “failed to fulfill his obligation [under the plea agreement] by failing to disclose and identify the source for the cocaine.” (I.R. Doc. 56 at 3.) Maldonado-Acosta filed a motion to compel performance of the plea bargain, requesting that the district court grant him a downward departure for substantial assistance even without a motion from the government under § 5K1.1. The district court denied the motion and this appeal followed. II We review for clear error the district court’s factual findings regarding sentencing and review de novo its legal interpretation of the Guidelines. See United States v. Henry, 164 F.3d 1304, 1310 (10th Cir.), cert. denied, 527 U.S. 1029, 119 S.Ct. 2381, 144 L.Ed.2d 784 (1999). Section 5K1.1 of the Guidelines states: Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines. As Maldonado-Acosta acknowledges, sentencing courts generally have no authority to compel the government to file a downward departure motion under § 5K1.1 or to grant a downward departure under that section without a government motion. See United States v. Perez, 955 F.2d 34, 35 (10th Cir.1992). The government’s motion “is an unequivocal condition precedent [and] the court may not act sua sponte” to determine that a defendant provided substantial assistance to the government. Vargas, 925 F.2d at 1267. This condition precedent limits the district court’s authority and “gives the Government a power, not a duty, to file a motion when a defendant has substantially assisted.” Wade v. United States, 504 U.S. 181, 185, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992). There are exceptions" }, { "docid": "11183116", "title": "", "text": "GARWOOD, Circuit Judge: Defendant-appellant Larry Urbani (Urba-ni) pleaded guilty to conspiracy to commit fraud and was sentenced following that plea to a term of imprisonment within the guidelines range. He brings this appeal challenging the government’s refusal to move for a downward departure from the guidelines under U.S.S.G. § 5K1.1 and the district court’s refusal to hold an evidentia- ry hearing to examine the extent of his assistance to the government. We affirm. Facts and Proceedings Below On October 18, 1990, Urbani and three others were named in a forty-one-count indictment concerning a fraudulent scheme of leasing vending and amusement machines, engaged in by several related companies of which Urbani was an employee. Urbani was named in twenty-seven counts, charging him with conspiring to commit mail and wire fraud and with the substantive fraud offenses, in violation of 18 U.S.C. §§ 371, 1341, and 1343. After the indictment was handed down, he entered into a plea agreement with the government. Under it, Urbani agreed to plead guilty to Count One of the indictment, the conspiracy count, to submit to debriefing whenever requested by law enforcement authorities, and to testify fully and truthfully before a grand jury or at any trial. In exchange, the government agreed not to pursue the remaining counts of the indictment (or other offenses — except crimes of violence, if any — related to the subject matter of the investigation leading to the indictment), and to “bring to the attention of the Court any cooperation rendered to law enforcement authorities by the defendant.” The plea agreement expressly and unequivocally disclaimed, however, any obligation by the government to file a motion authorizing the district court to depart downward from the guidelines under U.S.S.G. § 5K1.1 for the defendant’s substantial assistance to the authorities. Ur-bani entered a guilty plea pursuant to this agreement on April 11, 1991. Between November 1990 and June 1991, Urbani attended seven debriefing sessions with the government. Prior to his scheduled sentencing on June 26, 1991, Urbani was informed by the Assistant United States Attorney that a motion from the government for a section 5K1.1" }, { "docid": "18356554", "title": "", "text": "WOLLMAN, Circuit Judge. Terrance Fields appeals from his 188-month sentence for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Fields asserts that the district court erred by not com pelling the government to file a motion for downward departure based upon substantial assistance under 18 U.S.C. § 3553(e) and United States Sentencing Guidelines (U.S.S.G.) § 5K1.1. In the alternative, Fields argues that the district court abused its discretion by not considering his assistance under the factors outlined in 18 U.S.C. § 3553(a). We affirm. Fields entered a guilty plea pursuant to a plea agreement, which stated that “[t]he defendant has not offered to assist the government in its ongoing investigation and the government has not requested his assistance.” Fields contends that at the time he entered the plea, his counsel noted that this statement was inaccurate because Fields had in fact offered to provide assistance himself, and had offered the assistance of a third party as a confidential informant. Before Fields was sentenced, the government declined to file a motion for a downward departure under § 3553(e) or § 5K1.1. Fields filed a motion to compel the government to file the motions or, in the alternative, for the district court to consider a downward variance from the guidelines range. During the sentencing hearing, the district court denied Fields’s motion because the plea agreement did not indicate there was an agreement based upon Fields’s assistance to the government, the government did not request assistance from the third party, and the government articulated rational reasons for not using the third party as a confidential informant. We review the district court’s conclusions of law and application of the sentencing guidelines de novo. United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir.2005). We review factual findings for clear error. Id. The government has discretion to determine whether the defendant has provided substantial assistance and whether to file a motion for a downward departure under § 3553(e) or § 5K1.1. The government may not, however, decline to file such a motion based upon an unconstitutional" }, { "docid": "2763904", "title": "", "text": "the Court imposes a sentence of imprisonment of 121 months or below. This waiver is binding on the defendant even if the Court employs a Guidelines analysis different from that [provided in the agreement]. Prior to sentencing, Morgan informed the District Court that the government would be filing a U.S.S.G. § 5K1.1 motion for a downward departure based on his substantial assistance. The government, however, refused to furnish the letter or to move for the departure. Morgan then sought to compel the motion, citing his cooperation with the government in trying to locate his fugitive wife and asserting that the prosecution had misled him into believing that it would file such a motion. The government responded that no agreement to file a § 5K1.1 motion had been reached and that, in any event, Morgan had repeatedly lied about his wife’s whereabouts. The District Court rejected Morgan’s efforts to obtain downward departure and calculated an adjusted offense level of 28, consistent with the terms of the plea agreement. The Court then sentenced Morgan to the bottom of the range stipulated in the agreement, 97 months’ incarceration. Morgan appeals his sentence. DISCUSSION On appeal, Morgan argues that the waiver provision in his plea agreement is unenforceable because his waiver was neither knowing nor voluntary. Morgan further contends that, even if the waiver was otherwise valid, it is unenforceable because: 1) his sentence was unconstitutional since it violated Apprendi by exceeding the statutory maximum applicable to his offense, 2) the government acted with an unconstitutional motive in refusing to move for downward departure pursuant to U.S.S.G. § 5K1.1, and 3) his trial counsel provided ineffective assistance. For the reasons discussed below, we find Morgan’s arguments against enforcement of the waiver to be unpersuasive, and we also decline to consider his ineffective assistance of counsel claim. I. Knowing and Voluntary Waiver Morgan claims that the waiver provision is unenforceable because the magistrate judge who conducted the plea proceeding did not explicitly mention the provision during the plea colloquy. See Fed.R.Crim.P. ll(b)(l)(N) (providing that the sentencing court “must inform the defendant of, and determine that" }, { "docid": "17369467", "title": "", "text": "its terms, section 5K1.1 vests in the government full discretion to file a substantial-assistance motion, subject to review only if the refusal to file was based on an unconstitutional motive. Wade v. United States, 504 U.S. 181, 184-87, 112 S.Ct. 1840, 1843-44, 118 L.Ed.2d 524 (1992). The record allows us to conclude with near certainty that, even if Carey had discussed Darling at the initial debriefing, any information about Darling would not have changed the government’s ultimate determination that Carey’s assistance was “not significant.” At least three facts support this conclusion. First, at the time of the initial debriefing, state authorities already knew that Darling was involved with drugs. Second, although Carey did freely discuss Darling at his second debriefing, the government was apparently unimpressed with whatever information Carey provided. Third, in its response to Carey’s objections to the magistrate’s report, the government makes clear that if Carey were ordered to be resentenced, it would not move for a downward departure because, at that point, “substantial assistance [could not] be rendered and [could] never be rendered.” Finally, upon careful review of the record, we detect no evidence even arguably suggesting that Carey’s sentencing was either unfair or unreliable. Accordingly, we conclude that Carey suffered no prejudice and, thus, his ineffective-assistance-of-counsel claim fails. CONCLUSION For the foregoing reasons, the decision of the district court is affirmed. . U.S.S.G. § 5K1.1 in relevant part states: Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines. . The magistrate's report considered Carey's ineffective-assistance-of-counsel claim in the context of vacating his guilty plea rather than sentencing. As we discuss below, Carey's motion alleges that ineffective assistance of counsel affected his sentencing and not his entry of plea. . Carey did not enter into an agreement under which the government would be bound to seek a downward departure. BOWNES, Senior Circuit Judge, dissenting in part: I fully agree that there was no error in the failure to hold an evidentiary hearing on" }, { "docid": "12085726", "title": "", "text": "FAGG, Circuit Judge. Miroslav Oransky pleaded guilty to two counts of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) (1982). At sentencing, Oransky asked the district court to depart from the relevant base offense levels in recognition of Oransky’s substantial assistance to authorities and unusual family circumstances. The district court refused and sentenced Oransky to two concurrent terms of twenty-four months in prison and three years of supervised release. We affirm. Oransky raises numerous arguments against the guidelines requirement that a sentencing court receive a motion from the government before granting a departure for substantial assistance. See U.S.S.G. § 5K1.1 (Oct.1987). Initially, Oransky claims the motion requirement violates due process and separation of powers. He also contends that, in his particular case: (1) no government motion was required because the offense of conviction carried no statutory minimum sentence; (2) a stipulation of facts agreed to by the government either satisfied the motion requirement or amounted to an enforceable promise to file a motion; (3) the district court abused its discretion by refusing to depart in light of the facts presented at sentencing; and (4) the government’s arbitrary or bad faith refusal to file a section 5K1.1 motion after stipulating to Oransky’s significant cooperation violated Oransky’s right to due process. We reject each of Oransky’s claims. First, the government motion requirement in section 5K1.1 does not violate due process or separation of powers. United States v. Grant, 886 F.2d 1513, 1514 (8th Cir.1989). Second, just as 18 U.S.C. § 3553(e) (Supp. V 1987) requires a government motion before a defendant may receive a sentence less than a statutory minimum, section 5K1.1 requires a government motion before a defendant may receive either a downward departure to a statutory minimum sentence or, as here, any downward departure where there is no statutory minimum. See U.S.S.G. § 5K1.1 (Oct.1987); United States v. Coleman, 895 F.2d 501, 504 n. 5 (8th Cir.1990). Third, the stipulation made by Oransky and the government neither takes the place of a section 5K1.1 motion nor contains any government pledge to file a motion. See id. at 504-06. Fourth," }, { "docid": "4074252", "title": "", "text": "sentence. II. Failure to Depart Under Section 5K1.1 Drake argues that the district court erred in failing to depart downward for the assistance he gave the government. Section 5K1.1 of the Guidelines provides that “[u]pon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.” U.S.S.G. § 5K1.1. In this case, the government did not make such a motion, nor was it required to do so by the terms of the plea agreement. Drake argues that the government’s failure to make such a motion was arbitrary and capricious and violated his fifth amendment due process rights. In the alternative, Drake contends that the government’s letter detailing his assistance is the functional equivalent of a motion to depart. We find that the government’s failure to make a motion for departure under section 5K1.1 was not done in bad faith and was not arbitrary. See United States v. Smitherman, 889 F.2d 189, 191 (8th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1493, 108 L.Ed.2d 629 (1990); see also United States v. Hubers, 938 F.2d 827 (8th Cir. 1991) (per curiam) (quoting Smitherman). The government fully complied with the plea agreement, dismissing five of seven counts and detailing Drake’s assistance to the government in a letter to the sentencing court. The district court relied on the government’s letter in sentencing Drake to a term at the bottom of the applicable sentencing range. Under the circumstances, we cannot say the government acted in bad faith or acted arbitrarily. CONCLUSION The district court correctly calculated Drake’s criminal history score under the Guidelines. There also was no basis for the district court to depart under section 5K1.1 for substantial assistance. We affirm the sentence imposed by the district court. . The Sentencing Commission has recognized that calculating criminal history scores based upon the maximum term imposed in prior criminal proceedings is an imperfect measure of the seriousness of past crimes. The Commission points out that district courts retain the power under section 4A1.3 to" }, { "docid": "14035111", "title": "", "text": "LUCERO, Circuit Judge. United States Sentencing Guideline (“U.S.S.G.”) § 5K1.1 specifically states that a downward sentencing departure for substantial assistance to the government may be granted “upon motion by the government.” We have held that the government’s motion for a departure for substantial assistance “is an unequivocal condition precedent; the [sentencing] court may not act sua sponte in such matters.” United States v. Vargas, 925 F.2d 1260, 1267 (10th Cir.1991). This Circuit has not yet decided, however, in the wake of Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), which interpreted the general “other grounds for departure” provision of the Guidelines, U.S.S.G. § 5K2.0, whether a sentencing court has the authority to grant a defendant a downward departure for substantial assistance to the government without the required motion from the government pursuant to § 5K1.1. Joining the other circuits that have considered this issue, we conclude that § 5Kl.l’s specific consideration of substantial assistance precludes its consideration under § 5K2.0. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. I After pleading guilty to conspiracy with intent to distribute cocaine and possession with intent to distribute cocaine, defendant-appellant Guillermo Valentin Maldonado-Acosta was sentenced to 135 months imprisonment. He had assisted agents with a controlled delivery and entered into a plea agreement under which the government in its discretion could move the district court for a § 5K1.1 reduction. At sentencing, the government did not move for this reduction because Maldonado-Acosta “failed to fulfill his obligation [under the plea agreement] by failing to disclose and identify the source for the cocaine.” (I.R. Doc. 56 at 3.) Maldonado-Acosta filed a motion to compel performance of the plea bargain, requesting that the district court grant him a downward departure for substantial assistance even without a motion from the government under § 5K1.1. The district court denied the motion and this appeal followed. II We review for clear error the district court’s factual findings regarding sentencing and review de novo its legal interpretation of the Guidelines. See United States v. Henry, 164 F.3d 1304, 1310 (10th" }, { "docid": "12064906", "title": "", "text": "or plea bargaining process instead of moving for departure at sentencing. See Sutherland, 890 F.2d 1043; Justice, 877 F.2d at 669; Taylor, 868 F.2d at 126-27. In addition, the government’s interest in rewarding defendants for their assistance to government investigations places some control on the prosecution’s discretion. “The reasonable use of substantial assistance motions for those who cooperate will make others more likely to do so in the future.” Huerta, 878 F.2d at 93. Prosecu-torial “promises to make [section 5K1.1] motions ar.e analogous- to plea agreements,” likely making remedies similar to those for breach of a plea agreement also available for breached motion promises. Id. As in Grant, we do not have before us the question whether the “prosecutor’s arbitrary or bad faith refusal to move for a section 5K1.1 departure violates due process,” 886 F.2d at 1514. Therefore, without a clear statement from the Commission to the contrary, we treat the policy statement of section 5K1.1 as binding law because it comports with the directive of section 994(n) and because its requirements coincide with the requirements of section 3553(e). Accordingly, we hold that district courts are bound to comply with the unambiguous language of section 5K1.1. The sentences imposed upon Gutierrez and McMickle are vacated and the cases are remanded to the district court for re-sentencing. . Section 5K1.1 was amended effective November 1, 1989, by substituting \"provided\" for “made a good faith effort to provide.” HEANEY, Senior Circuit Judge, dissenting. This is the first panel in our Circuit to hold that a district court errs in departing downward where convicted defendants have rendered substantial assistance to the government pursuant to the Sentencing Guidelines. But see United States v. Coleman, 895 F.2d 501, 501 (8th Cir.1990) (holding that under 18 U.S.C. § 3553(e), district courts are not empowered to depart from mandatory minimum sentence for substantial assistance without a motion by the government); United States v. Reina, 905 F.2d 638 (2d Cir.1990). In my view, the majority’s view is not required by the Guidelines, unduly limits the ability of a trial court to protect a defendant against arbitrary action," }, { "docid": "9799455", "title": "", "text": "arguably justify a downward departure: Guideline section 5K1.1, Guideline section 5K2.0, and the plea agreement. We consider each in turn. I. Guideline Section 5K1.1 Section 5K1.1 allows departure from the Guideline range when a defendant substantially cooperates with the government. That section provides: Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines. The district court stated that it had no authority to depart on the basis of this section, noting that section 5K1.1 explicitly conditions such a downward adjustment “[u]pon motion of the government.” We have jurisdiction to review a district court’s refusal to depart downward based on its interpretation of law as barring such departure. See United States v. Morales, 898 F.2d 99, 102 & n. 2 (9th Cir.1990). Since the time of Goroza’s sentencing, this circuit has recognized that section 5Kl.l’s requirement that departure be premised on a government motion “might not apply if the prosecution has acted with ‘bad faith or arbitrariness that might conceivably present a due process issue.’ ” United States v. Mena, 925 F.2d 354, 355 (9th Cir.1991) (quoting United States v. Smitherman, 889 F.2d 189, 191 (8th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1493, 108 L.Ed.2d 629 (1990)). We find that departure pursuant to section 5K1.1 is inappropriate in this case, however, because the record provides no indication of any bad faith or arbitrariness that would authorize such a departure absent a government motion. The government rested its decision that Goroza did not substantially cooperate on the statements of Joseph, Joseph’s attorney, and a DEA witness, all of which indicated that Goroza had perjured himself. These pieces of evidence provide sufficient grounds on which to rest the decision so as not to make it either arbitrary or in bad faith. Simply because the government determined Goroza had not been truthful in his dealings with it, despite Goroza’s acquittal on the perjury charge, does not, without more, render the government’s decision arbitrary or demonstrate that it was made in" }, { "docid": "14839360", "title": "", "text": "NIEMEYER, Circuit Judge: Following his guilty plea to charges for drug distribution and related gun use, Harold Ray Wade, Jr. was sentenced to a mandatory minimum ten-year sentence for the drug charges and a consecutive mandatory five-year sentence for the gun charge. See 21 U.S.C. § 841(b); 18 U.S.C. § 924(c). In denying Wade’s motion for a downward departure based on his substantial assistance to the government, the district court concluded that, in the absence of a motion made by the government under U.S.S.G. § 5K1.1, it had no authority to depart from the mandatory minimum sentences. On appeal, Wade contends that (1) the district court erroneously concluded that it did not have the authority to depart downward for substantial assistance on his motion, which was supported by substantial evidence of the valuable cooperation that he provided, and (2) the court should have permitted an inquiry into the government’s reasons for its refusal to make the motion under § 5K1.1 to determine whether it acted arbitrarily or in bad faith. Finding no error, we affirm. There appears to be no disagreement on the fact that shortly after his arrest and without the benefit of a plea agreement, Wade began a course of cooperation which provided valuable assistance to the government in other prosecutions, leading to the conviction of co-conspirators. Yet, with some disillusionment, he observes that the government made no comment about his cooperation at sentencing and refused to file a motion for a downward departure under U.S.S.G. § 5K1.1. Wade brought these facts to the attention of the district court in connection with his motion for a downward departure and sought unsuccessfully to inquire of the government why it refused to make the motion. He argues that such an inquiry would have been relevant to resolve whether the government acted arbitrarily or in bad faith. Limited authority to depart from mandatory minimum sentences is provided in 18 U.S.C. § 3553(e), which provides: Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to" }, { "docid": "23184820", "title": "", "text": "guideline range. We agree with our dissenting colleague that the district court perhaps should have said more. It is worth noting, however, that in the post-Booker era, the Defendant’s immigration status could lead a sentencing court to two opposite conclusions, one being that potential deportation and fewer prison opportunities should be a reason for a downward variance. Conversely, the other conclusion could be that a person granted the benefit of entry to the country should be subject to an upward variance for abusing the privilege. In different factual contexts, either approach is within the discretion of the sentencing court. In this case, the district court emphasized the serious nature of Petrus’ conduct and did not find that his immigration status sufficiently mitigated his crime. The record discloses that the district court understood Petrus’ argument, considered the merits, and rejected the position. As to the sentences given to his co-conspirators, the record is clear that, unlike Petrus, each of the other defendants cooperated with the government and received the benefit of a motion for a downward departure under U.S.S.G. § 5K1.1. Co-conspirator Jeny Maqi faced a sentencing guideline range of 121-151 months. The district court granted the 5K1.1 motion and did not impose incarceration, given her “extraordinary and exceptional” amount of assistance to the government. The dissent states that Petrus “was willing and able to co-operate with the government” but, because he waited until all others had rendered assistance, he was denied a 5K1.1 motion. As to the sentencing guidelines, this Court is without authority to review a decision by the government not to file a 5K1.1 motion, unless a defendant alleges and supports a claim that the refusal to file was based upon an unconstitutional, prosecutive motive. Wade v. United States, 504 U.S. 181, 112 S.Ct. 1840, 1844, 118 L.Ed.2d 524 (1992); United States v. Blue, 557 F.3d 682 (6th Cir.2009). A district court may, in its discretion, consider whether a defendant’s cooperation should be considered under 18 U.S.C. § 3553(a). Blue, at 686. Thus, whether to treat Petrus’ alleged willingness to cooperate as a 3553(a) mitigating factor is a" }, { "docid": "23553417", "title": "", "text": "an aggregate amount exceeding $100,000. Appellants’ payments took place over a substantial span of time. It was only after the authorities started to uncover pervasive corruption in the Sarault administration that appellants began cooperating with the U.S. Attorney. In the aftermath of this cooperative effort, the government, rather than seeking indictments, prepared infor- mations charging the two men with violating 18 U.S.C. § 666(a)(2) (1988). The defendants pled guilty pursuant to plea agreements providing in relevant part that the government would pursue a reduction in the offense level based on the defendants’ assistance to law enforcement agencies. Mariano and Butterworth were charged and sentenced separately. In each instance, the prosecution described the defendant’s cooperation and argued for a six-level downward departure pursuant to U.S.S.G. § 5K1.1. The district court refused to depart and sentenced each defendant to a twenty-seven month prison term — an incarcerative sentence at the top end of the guideline sentencing range (GSR). The government moved for reconsideration. In explaining his refusal to reconsider, the district judge, referring to and quoting from United States v. Aguilar-Pena, 887 F.2d 347 (1st Cir.1989), stated that he did not have discretion to depart. In these appeals, appellants claim in unison that the district court erred in establishing the base offense level (and, hence, in fixing the GSR), that the court misapprehended the legal standard governing departures under section 5K1.1, and that their sentences were “plainly unreasonable” in derogation of 18 U.S.C. § 3742(a)(4) (1988). In addition, Mariano contends that the district court labored under fundamental factual misconceptions and violated the Due Process Clause by focusing exclusively on deterrence concerns to the detriment of an individualized sentence. Not to be outdone, Butterworth contends that the government breached the plea agreement by failing to argue enthusiastically enough in support of a downward departure. We concentrate initially on appellants’ flagship claim — the assertion that the court below misapprehended the controlling legal standard, thus mismeasuring the limits of the discretion entrusted to it under section 5K1.1. We take this tack because, if this claim pans out, most of appellants’ other asseverations need not" }, { "docid": "10512042", "title": "", "text": "government is ordered to file a 5K1.1 motion, it remains free to inform the district court of the extent and usefulness of the defendant’s cooperation. See U.S.S.G. § 5K1.1, Application Note 3. Moreover, the district court may or may not conclude that the defendant’s cooperation warrants a downward departure from the defendant’s guideline range. U.S.S.G. § 5Kl.l(a). B. Watson argues next that he was denied due process because the district court did not inform him, before accepting his guilty plea, that the sentencing guidelines instruct the court to consider all relevant conduct in determining the sentence. Watson seeks to have his sentence modified to reflect only the criminal conduct to which he pleaded guilty. This argument is new on appeal. Nevertheless, we have considered it and find no merit to it. In United States v. Pearson, 910 F.2d 221, 223 (5th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 977, 112 L.Ed.2d 1062 (1991), we held that a defendant had no due process right to be notified, before the district court accepted his guilty plea, that his sentence would be enhanced for recidivism pursuant to the sentencing guidelines. We said: “Due process does not mandate ... notice, advice, or a probable prediction of where, within the statutory range, the guideline sentence will fall.” Pearson, 910 F.2d at 223. IV. For the reasons stated above, we affirm Campbell’s conviction and sentence. We remand for a determination of whether the government breached Watson’s plea agreement by not filing a § 5K1.1 motion in Watson’s behalf. If the district court finds that the government breached the agreement, it should order specific performance of the agreement, and Watson should be resentenced by a different judge. AFFIRMED in part, VACATED in part, and REMANDED in part. . U.S.S.G. § 5K1.1 provides: Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines. . Campbell argues that he has consistently asserted his innocence, pointing out that he originally pled not guilty, and that he" }, { "docid": "23408668", "title": "", "text": "allow discretion whether to move for a downward departure. But a reading of the entire paragraph, in conjunction with section 9’s statement that the government could bring to the court’s attention Mikaelian’s failure to fulfill his obligations under the agreement, demonstrates that the “motions for departure” that may be appropriate if the government decides to file them include motions for downward departure as well as motions for reduction of previously imposed sentences. This reading is consistent with cases providing that § 5K1.1 “grants the government the discretion, but does not impose a duty, to move for a departure when the defendant has rendered substantial assistance.” United States v. Murphy, 65 F.3d 758, 762 (9th Cir.1995); see Wade v. United States, 504 U.S. 181, 185, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992). The plea agreement, on its face, does not require the government to file a substantial assistance motion under any and all circumstances. B. Downward departure The district court generally lacks the authority to grant a downward departure uiider 5K1.1 unless the government makes a motion. Murphy, 65 F.3d at 762. The district court cannot review the government’s discretionary decision not to file the motion, except that “the government cannot refuse to file such a motion on the basis of an unconstitutional motive ... or arbitrarily (i.e., for reasons not rationally related to any legitimate government interest).” Id. If the government was arbitrary in refusing to file the motion, the district court has the authority to depart downward. Id. 1. Factual finding Mikaelian argues, and the government concedes, that remand is required for the court to make a factual finding whether Mikaelian breached the plea agreement by failing fully to cooperate. While the court may have impliedly made such a finding, we agree that remand is necessary in any event, as discussed hereafter in subsection 2. Although the government has the discretion to decide whether to file the motion, it does not have the last and only word on whether a defendant provided substantial assistance. As in this case, the government may decline to file a motion and state that" } ]

[ { "docid": "2075193", "title": "", "text": "PER CURIAM: Hirotoshi Yamamoto appeals from a partial summary judgment granted by District Judge King sitting as the bankruptcy court. Yamamoto initially claimed we lacked jurisdiction over this appeal and he claims that Judge King should be disqualified from presiding over the adversary proceedings in this case. We affirm the partial summary judgment. BACKGROUND Manoa Finance Co. (MFC) is an Hawaiian corporation licensed to do business as an industrial loan company. The State of Hawaii moved successfully in state court to have a receiver appointed due to MFC’s violations of Hawaii’s Industrial Loan Companies Act. The next day, MFC filed a voluntary petition for Chapter 11 Reorganization in the United States Bankruptcy Court for the District of Hawaii. The bankruptcy judge recused himself, and District Judge King assumed the administration of the estate. The papers in the case were filed in bankruptcy court, though some have district court headings. Klenske was appointed Trustee in Reorganization for MFC and filed a complaint alleging a variety of wrongdoings stemming from transactions involving Yamamo-to, other defendants, and MFC and its subsidiaries. Yamamoto filed an answer. Klenske moved for summary judgment on two counts of the complaint and Yamamoto filed a memorandum in opposition. Both counts involve debts owed to MFC by Yam-amoto. A hearing was held before Judge King and he granted summary judgment on both counts. The appeal was certified pursuant to Fed.R.Civ.P. 54(b). At oral argument before this court, Yamamoto conceded that he is responsible for the debts in question. DISCUSSION I. APPELLATE JURISDICTION Klenske claimed in his brief that this court has no jurisdiction to hear this case because it is a direct appeal from a decision of a bankruptcy court. While he attempted to waive this claim at oral argument, we nonetheless are obligated to decide jurisdictional issues. Pizza of Hawaii, Inc. v. Shakey’s Inc. (Matter of Pizza of Hawaii, Inc.), 761 F.2d 1374, 1377 (9th Cir.1985). The Bankruptcy Amendments and Federal Judgeship Act of 1984 (1984 Act), Pub.L. 98-553, removed the statutory authorization of direct appeals from bankruptcy courts to the courts of appeal. SEC v. Danning (In" } ]

[ { "docid": "18591148", "title": "", "text": "FERGUSON, Circuit Judge: These three consolidated appeals arise out of a complicated series of transactions, in and out of court, over the last decade. William Ellis and parties roughly aligned with him in interest, in various combinations, appeal from three dispositions adverse to their claims to an improved parcel of land in Hawaii known as the Silversword Inn. The first judgment, entered by District Judge King in consolidated adversary proceedings Nos. 72-391(3) and 72-391(4) in a Chapter XII proceeding filed by Ellis in 1972, summarily declared that the defendants-appellees, Herbert and Alberta Loui, are the owners of the subject property and that the other parties to Bankruptcy Nos. 72-391(3) and 72-391(4) have no interest in it. Appeal No. 81-4081. For the reasons stated below, we reverse the judgment and remand the case for further proceedings. The second judgment, a writ of assistance issued by Judge King, directed the marshal to put the Louis in possession of the Silvers-word Inn as against “all and every person and entity holding possession of said premises.” Appeal No. 81-4213. Since we reverse the judgment on which this writ depends, it must be vacated. The third was the oral denial by District Judge Heen of a preliminary injunction sought by three persons not party to the bankruptcy proceedings, and not claiming title through William Ellis, but apparently aligned with him in interest, and apparently in possession of the property. These parties had filed a separate action in the district court seeking a declaration that the judgments issued by Judge King in the bankruptcy proceeding were of no effect as to their interest in and possession of the property. Although that action is still pending, the plaintiffs appeal from the oral denial of their request for a preliminary injunction against the U.S. Marshal. Appeal No. 81-4318. In view of our disposition of the first two appeals, this third one is moot, and we therefore dismiss it. FACTS In March 1971, William Ellis (Ellis) conveyed the Silversword Inn to Bessie Hagopian, the sister of Lillian Corey (Lillian). Lillian acted as Hagopian’s agent in this transaction. The conveyance" }, { "docid": "4690516", "title": "", "text": "have failed to show they would be entitled to any such defenses. D. Validity of Injunction Appellants argue that the court’s order enjoining them from communicating with prospective buyers of the Silversword Inn violates their first amendment rights of speech and association. However, the injunction merely bars them from making false claims of ownership regarding the Inn; they are free to speak of anything else they please. Because the injunction only restrains false or misleading commercial speech, it is consistent with the first amendment. See U-Haul Int’l, Inc. v. Jartran, Inc., 793 F.2d 1034, 1042 (9th Cir.1986). E. Judicial Bias Appellants make a broadside attack on the impartiality of Judge Pence sitting as a bankruptcy judge. We are unimpressed. A judge’s comments aimed at facilitating orderly proceedings are not, in and of themselves, evidence of bias. See Hansen v. Commissioner, 820 F.2d 1464, 1467 (9th Cir.1987). Moreover, judicial bias must arise from extrajudicial sources. United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). In this case, the record shows clearly that, to the extent the learned district judge was inclined to rule against appellants, this was the product of his knowledge of the facts of the case gained during judicial proceedings, not of any extrajudicial information. F. Conclusion Appellants make a variety of other arguments, too numerous and too insubstantial to discuss in any detail. Suffice it to say that we have studied the voluminous record in this case thoroughly and have given careful consideration to all of appellants’ contentions. We find no error that would warrant reversal of the judgments below. The bankruptcy court did an admirable job with a difficult case. Doubtless, not everyone is satisfied with the result; perhaps no one is completely satisfied. Yet, there must be an end to every dispute so that the parties may go on with their lives unburdened by the demands and risks of litigation, and the court may turn its attention to other cases. After two decades of litigation, that point has been reached. This case is at an end. . The" }, { "docid": "4690504", "title": "", "text": "U.S. 462, 476, 103 S.Ct. 1303, 1311, 75 L.Ed.2d 206 (1983); Worldwide Church of God v. McNair, 805 F.2d 888, 890-91 (9th Cir.1986). 3. Appellants’ claim that the state court improperly interfered with the federal courts’ exclusive jurisdiction over bankruptcy proceedings is also without merit. The Hawaii judgment was against Corey who, throughout the state court proceed ings, was not yet under the protection of federal bankruptcy laws. Thus, the judgment could not prejudice her rights as a Chapter 11 debtor. We also reject appellants’ claim that the Hawaii judgment was an unlawful preference, because appellants have failed to show that Corey was insolvent or in danger of becoming insolvent at the time the judgment was recorded, see 11 U.S.C. § 547(b) (1988) (“the trustee may avoid any transfer of an interest of the debtor in property ... made while the debt- or was insolvent”). The state court judgment also did not interfere with the Ellis bankruptcy proceedings, as the state court never purported to grant title to the Louis or to affect Ellis’s use or possession of the Silversword Inn. The judgment thus did not affect Ellis’s rights as a debtor under the federal bankruptcy laws. Compare Gonzales v. Parks, 830 F.2d 1033, 1035-36 (9th Cir.1987) (state court was without jurisdiction to consider whether filing of bankruptcy petition constituted abuse of process). 4. Similarly unavailing is appellants’ challenge to the Louis’s plan on the grounds that it was not proposed in good faith as required by 11 U.S.C. § 1129(a)(3) (1988). In order to satisfy the statutory requirement of good faith, a plan must be intended to achieve a result consistent with the objectives of the Bankruptcy Code. Stolrow v. Stolrow’s, Inc. (In re Stolrow’s, Inc.), 84 B.R. 167, 172 (Bankr. 9th Cir.1988); Jorgensen v. Federal Land Bank of Spokane (In re Jorgensen), 66 B.R. 104, 108-09 (Bankr. 9th Cir.1986). Granting the district court’s findings substantial deference, we find no absence of good faith on the part of the Louis in proposing this plan. The Louis's plan appears to be a fair and well-reasoned effort to end the years" }, { "docid": "22822527", "title": "", "text": "bankruptcy court made oral findings of fact roughly corresponding to all factors except the first one concerning the plaintiff’s success on the merits. However, the first factor was not dispositive of the bankruptcy court's decision to issue the preliminary injunction. Where a factor is not dispositive, Rule 52 does not require a specific finding. In re DeLorean, 755 F.2d at 1228. F. Finally, AISI argues that the bankruptcy judge should have recused himself from ruling on Eagle-Picher’s application for a preliminary injunction because his familiarity with,the bankruptcy case somehow ruined his impartiality and prejudiced him in his handling of the adversarial portion of the proceedings, i.e., Eagle-Picher’s application for injunction. AISI did not move for recusal in the bankruptcy court and first raised the issue in its appeal to the district court. The district court refused to consider the issue because it was not first raised in the bankruptcy court. AISI now argues that it was unnecessary for it to raise this issue in the bankruptcy court in order to preserve it. In support of its argument, it cites In re Manoa Finance Co., Inc., 781 F.2d 1370, 1373 (9th Cir.1986) (per curiam), cert. denied, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987), in which the Ninth Circuit held that motions to recuse under 28 U.S.C. § 455 were unnecessary to preserve the recusal issue for appeal. In United States v. Studley, 783 F.2d 934, 939 (9th Cir.1986), however, the same circuit held “that a motion for recusal filed weeks after the conclusion of a trial is presumptively untimely absent a showing of good cause for its tardiness.” If the Ninth Circuit would bar consideration of a late-filed motion for recusal because of its tardiness, it would seem that the court would refuse to consider the issue where no motion for recusal had ever been filed. That is the logical extension of the holding in Studley. In Palila v. Hawaii Dep’t of Land & Natural Resources, 852 F.2d 1106, 1110 n. 7 (9th Cir.1988), the Ninth Circuit referred to Manoa and admitted that, “[u]nder 28 U.S.C. § 455," }, { "docid": "18591160", "title": "", "text": "entered by a district judge sitting as a bankruptcy judge are appealable to the court of appeals. They also pointed out that another appeal arising in Ellis’s bankruptcy proceedings but involving a different piece of property and a different claimant raised the same jurisdictional question. Ellis v. Cassidy, No. 80-4021. Since this court would have to reach the jurisdictional issue as part of the merits of appeal No. 80-4021 and because the motion for reconsideration appeared to have some merit, on April 23 the motions panel directed that appeal No. 81-4081 be reinstated. Because of the common jurisdictional issues, the panel added that appeals Nos. 80-4021 and 81-4081 should be heard by the same merits panel. The court also denied appellants’ emergency motion for stay and alternative emergency motion for stay. At that point, it still appeared that Lillian (through the state court stay) and Kulalani (through the bankruptcy court’s stay with a bond) would be protected from the Louis’ attempts to obtain possession against them. However, this court did not know who was actually in possession. No stay of the bankruptcy court’s judgment having been obtained, on April 13 the Louis filed in the bankruptcy court a motion for issuance of writ of assistance to obtain possession of the Silversword Inn. Hoping to obtain the blessing of the Hawaii Supreme Court, on April 10 the Louis filed in that court a Motion for Determination of Scope of Supersedeas. The Louis represented to the bankruptcy court: Although the Louis request that this Court order the immediate issuance of the Writ of Assistance, the Louis will not deliver the Writ of Assistance to the Marshal of the District of Hawaii until the Supreme Court of the State of Hawaii determines that the state court stay does not preclude the United States Bankruptcy Court for the District of Hawaii from enforcing its Judgment by putting the Louis in possession of the property as against parties other than Lillian Hagopi-an Corey. The motion for issuance of the writ was opposed by Lillian Corey. She argued that the proposed writ was overbroad because it" }, { "docid": "18591157", "title": "", "text": "further action on the proposed judgment. ...” The bankruptcy court entered judgment on March 10, 1981, ruling in paragraph 1 in favor of the Louis on all counts of plaintiffs’ consolidated amended complaint, and in paragraph 2 in favor of the Louis and against Lillian on all counts of Lillian’s cross-claim. In paragraph 3, the court ruled in favor of the Louis as follows: i. The Louis are the owners of the property described in Exhibit 1 hereto (“the property”) under an Agreement of Sale between Corey, as seller, and the Louis, as purchasers; ii. The Debtor herein, the trustee for the estate of the Debtor, and Additional Counterclaim Defendant Kulalani, Ltd. have no ownership interest or any other interest in the property; iii. Plaintiffs Silversword Trust, Robert P. Shaw, and Pauline L. Shaw have no mortgage interest or any other interest in the property; iv. Plaintiff The Sword, Inc. has no leasehold interest or any other interest in the property; v. Plaintiff Upland Investments, Ltd. has no mortgage interest or any other interest in the property; and vi. The Louis are entitled to possession of the property as against Plaintiffs and Additional Counterclaim Defendant Kulalani, Ltd., and their transferees during the pendency of these adversary proceedings, if any, from March 5, 1980, the date upon which the Lis Pendens filed in Bankruptcy No. 72-391(3) on March 3, 1980 was recorded with the Bureau of Conveyances of the State of Hawaii. The bankruptcy court further directed plaintiffs (by this time, Lillian had been redesignated as a defendant) and counterclaim defendant Kulalani, an alleged alter ego of Ellis, to deliver possession of the property to the Louis forthwith and enjoined the same parties from recording with the state Bureau of Conveyances any document depending for its validity on the “mortgage theory” already rejected by the bankruptcy court. Kulalani had come into the picture on September 1, 1980, when Ellis conveyed his interest in the property to Kulalani for a purchase price of $766,475.77. The conveyance was intended to maintain between Lillian and Kulalani the mortgagee-mortgagor relationship that purportedly had existed between" }, { "docid": "18591190", "title": "", "text": "had claimed a mortgage lien against the Silversword Inn, which was released on September 30, 1980. Upland owned and leased furniture and equipment on the Silversword Inn premises until January 1, 1981, but in affidavits signed in November 1980 and March 1981, Upland disclaimed any interest in the property. The Sword, of which Florence Ellis was president and for which Helen Ryan, the trustee in bankruptcy for William Ellis, was the attorney, had leased a portion of the Silversword Inn from Ellis from January 1, 1980 and all of the property from Kulalani from September 1, 1980. The lease terminated on November 30, 1980. The Sword subsequently sold all of its personal property on the premises and disassociated its domicile from the premises. These entities had sought dismissal in the bankruptcy court of the claims involving them on the grounds that any controversy between the Louis and them was rendered moot by their disclaimers of interest in the property. Nevertheless, the bankruptcy court entered judgment against them on the merits. . Appeal No. 80-4021 was properly before this court because the district court (Judge King) issued an order of dismissal of an appeal from the bankruptcy court’s judgment. . See note 9, infra. . In fact, Kulalani never posted the bond. Thus, the stay did not take effect. . The proposed writ listed by name all parties except Lillian Corey, presumably in attempted deference to the state court stay. . Plaintiffs had filed in the district court a Suggestion of Statutory Disqualification of Judge King. . The Intermediate Court of Appeals has concurrent jurisdiction with the Hawaii Supreme Court, H.R.S. § 602-57, and hears cases which are assigned to it by the chief justice of the supreme court or his designee, H.R.S. § 602-5(8). All appeals are filed in the first instance with the supreme court. Id. Generally, the less important cases are assigned to the intermediate court. See Rule 27, Rules of the Supreme Court of the State of Hawaii. . Before that issue can be reached, however, it must appear that this court has jurisdiction to entertain an" }, { "docid": "4690515", "title": "", "text": "the March 1971 transaction as a sale. C.Summary Judgment Requiring Appellants to Relinquish Possession of the Inn Appellants argue that the bankruptcy court incorrectly held, as a matter of law, that they were required to relinquish possession of the Silversword Inn to Corey. However, under 11 U.S.C. § 542(a) (1988), an entity in control of property that a trustee could use or sell pursuant to 11 U.S.C. § 363 (1988), must turn that property over to the trustee. Appellants may be correct in arguing that, prior to relinquishing control of the property, a creditor is entitled to some form of security; however, appellants do not in fact have any valid claims against Corey’s estate, all such claims having been found worthless. Thus, they cannot claim that their rights as creditors have been prejudiced. On the merits, we hold that the district court’s grant of summary judgment was proper because there were' no material issues of fact in dispute. Even if equitable defenses such as laches were available to defeat the operation of section 542, appellants have failed to show they would be entitled to any such defenses. D. Validity of Injunction Appellants argue that the court’s order enjoining them from communicating with prospective buyers of the Silversword Inn violates their first amendment rights of speech and association. However, the injunction merely bars them from making false claims of ownership regarding the Inn; they are free to speak of anything else they please. Because the injunction only restrains false or misleading commercial speech, it is consistent with the first amendment. See U-Haul Int’l, Inc. v. Jartran, Inc., 793 F.2d 1034, 1042 (9th Cir.1986). E. Judicial Bias Appellants make a broadside attack on the impartiality of Judge Pence sitting as a bankruptcy judge. We are unimpressed. A judge’s comments aimed at facilitating orderly proceedings are not, in and of themselves, evidence of bias. See Hansen v. Commissioner, 820 F.2d 1464, 1467 (9th Cir.1987). Moreover, judicial bias must arise from extrajudicial sources. United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). In this case, the" }, { "docid": "4690514", "title": "", "text": "whether the rule in Kawauchi applies to this case. The Hawaiian practice of construing certain conveyances in fee simple as mortgages is an equitable concept, designed to protect a mortgagor’s right of redemption from overreaching lenders. See Kahau v. Booth, 10 Haw. 332, 334 (1896) (“Once a mortgage always a mortgage, and the mortgagor is allowed to redeem.”). In this case, however, the district court found that any overreaching was done by Ellis, not Corey. According to the court, Ellis “intended and attempted to use his secret knowledge and interpretation of Kawauchi to ensnare, entrap, and defraud an unsophisticated friend who meant only to help him.” Decision and Order at 52. We do not believe the Hawaii courts would apply an equitable doctrine to reach an inequitable result. See Shinn v. Edwin Yee, Ltd., 57 Haw. 215, 553 P.2d 733, 744 (1976) (a party may not “profit by his own misconduct”); Kawauchi, 413 P.2d at 236 (“he who seeks equity must do equity”) (internal quotations omitted). We hold therefore that the district court properly construed the March 1971 transaction as a sale. C.Summary Judgment Requiring Appellants to Relinquish Possession of the Inn Appellants argue that the bankruptcy court incorrectly held, as a matter of law, that they were required to relinquish possession of the Silversword Inn to Corey. However, under 11 U.S.C. § 542(a) (1988), an entity in control of property that a trustee could use or sell pursuant to 11 U.S.C. § 363 (1988), must turn that property over to the trustee. Appellants may be correct in arguing that, prior to relinquishing control of the property, a creditor is entitled to some form of security; however, appellants do not in fact have any valid claims against Corey’s estate, all such claims having been found worthless. Thus, they cannot claim that their rights as creditors have been prejudiced. On the merits, we hold that the district court’s grant of summary judgment was proper because there were' no material issues of fact in dispute. Even if equitable defenses such as laches were available to defeat the operation of section 542, appellants" }, { "docid": "18591187", "title": "", "text": "the conclusions just stated. Kaplan v. Guttman, 217 F.2d 481 (9th Cir. 1954), did not involve property that was actually or constructively in the possession of the bankrupt or trustee. The same may be said of the disputed certificates of deposit in First State Bank & Trust Co. v. Sand Springs State Bank, 528 F.2d 350 (10th Cir. 1976). Nor has our research disclosed any authorities to the contrary. We conclude that the bankruptcy court did have jurisdiction to adjudicate the competing claims to the subject property of all the parties to the adversary proceeding. II. Appeal No. 81-4213 and Appeal No. 81-4318 On April 20, 1981, on motion of the Louis, Judge King ordered the issuance of a writ of assistance directing the marshal to eject from the Silversword Inn Ellis and other named parties, and “all and every person and entity holding possession of said premises.” The appeal is taken on the basis that the writ was overbroad because it ran, by its terms, against persons who were not party to or bound by the underlying judgment, and on the basis that the issuance of such a writ was barred by the supersedeas order then in effect, staying execution of the state court judgment obtained by the Louis against Lillian. In view of our decision reversing and remanding the underlying judgment, the writ must be vacated. We need not reach the substantive questions raised by the appellants. When the writ of assistance was issued, William Ellis’s wife, Florence Ellis, was in possession of the premises as the lessee of William Ellis’s daughter, Lei-Anne Grouard. Grouard claimed a title independent of that claimed by William Ellis in the bankruptcy proceedings. The marshal notified Florence Ellis and Grouard that he would execute the writ against them on June 3. They went to federal district court seeking a declaration that the bankruptcy court judgment and writ were ineffective against them, and requesting a preliminary injunction against execution of the writ. The request for preliminary injunction was denied orally by Judge Heen, and plaintiffs took this appeal. Because we have determined that" }, { "docid": "10023749", "title": "", "text": "the standard for finality under § 1291 might be more strict than that under § 158(d). Id. n. 7. Because we found the order not appealable under § 158(d)’s (arguably) more liberal standards, we concluded that we certainly did not have jurisdiction under § 1291. Id. at 719 (also concluding that Cohen’s collateral order doctrine did not apply). When a district court sitting as a bankruptcy trial court ordered a former director of the debtor to turn over stock to the bankruptcy trustee, we addressed the issue we had avoided in Benny. Cannon v. Ha waii Corp. (In re Hawaii Corp.), 796 F.2d 1139 (9th Cir.1986). We explained: We, however, have developed liberalized rules of finality for bankruptcy eases arising under section 158(d). Because [Klenske v.] Goo [ (In re Manoa Finance), 781 F.2d 1370 (9th Cir.1986), cert. denied sub nom. Yamamoto v. Klenske, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987),] states that our jurisdiction in cases like the instant action arises under section 1291 and not section 158(d), we hold that these liberalized rules do not apply to appeals from district judges sitting in bankruptcy. [In re] Mason[, 709 F.2d 1313 (9th Cir.1983),] makes clear that the rule of finality for bankruptcy cases is more liberal than the finality rule under 28 U.S.C. § 1291. See Mason, 709 F.2d at 1316 (“The thrust of Levin’s argument is that one should determine if an order is final in light of the unique nature of bankruptcy procedure and not with blind adherence to the rules of finality developed under 28 U.S.C. § 1291.”); id. at 1318 (“Our decision that the entry of an order of relief is a final decision appealable as of right to this court by the debtor should not be read to imply that this court endorses a liberalization of the rule governing finality in any other context. The unique nature of bankruptcy procedure dictates, however, that we take a pragmatic approach to the question of finality.”). Because the liberalized rules of finality for bankruptcy appeals do not apply to 28 U.S.C. § 1291 appeals," }, { "docid": "18591149", "title": "", "text": "Since we reverse the judgment on which this writ depends, it must be vacated. The third was the oral denial by District Judge Heen of a preliminary injunction sought by three persons not party to the bankruptcy proceedings, and not claiming title through William Ellis, but apparently aligned with him in interest, and apparently in possession of the property. These parties had filed a separate action in the district court seeking a declaration that the judgments issued by Judge King in the bankruptcy proceeding were of no effect as to their interest in and possession of the property. Although that action is still pending, the plaintiffs appeal from the oral denial of their request for a preliminary injunction against the U.S. Marshal. Appeal No. 81-4318. In view of our disposition of the first two appeals, this third one is moot, and we therefore dismiss it. FACTS In March 1971, William Ellis (Ellis) conveyed the Silversword Inn to Bessie Hagopian, the sister of Lillian Corey (Lillian). Lillian acted as Hagopian’s agent in this transaction. The conveyance was subject to a lease and included an option to repurchase which, with extensions, expired unex-ercised on December 31, 1976. In 1972, Ellis filed a Chapter XII proceeding in the bankruptcy court in Hawaii. Despite the 1971 conveyance, one of the items listed in the bankruptcy estate was the Silversword Inn. In July 1973, Hagopian conveyed her interest in the property to Lillian. In January 1977, Herbert and Alberta Loui (Louis) and Lillian executed a standard form Deposit Receipt, Offer and Acceptance (DROA) for the sale of the Silversword Inn for $575,000. In accordance with the DROA, the Louis placed $175,000 in escrow. Lillian refused to proceed with the sale on August 1, 1977, the scheduled closing date. On August 12, 1977, the Louis filed a complaint against Lillian in Hawaii state court for specific performance and damages for breach of contract (Hawaii Civil No. 52308). Among Lillian’s contentions in defense were that Ellis’s transaction with Hagopian was not a sale of the property, but a mortgage transaction in the form of a sale. Thus," }, { "docid": "4690505", "title": "", "text": "or possession of the Silversword Inn. The judgment thus did not affect Ellis’s rights as a debtor under the federal bankruptcy laws. Compare Gonzales v. Parks, 830 F.2d 1033, 1035-36 (9th Cir.1987) (state court was without jurisdiction to consider whether filing of bankruptcy petition constituted abuse of process). 4. Similarly unavailing is appellants’ challenge to the Louis’s plan on the grounds that it was not proposed in good faith as required by 11 U.S.C. § 1129(a)(3) (1988). In order to satisfy the statutory requirement of good faith, a plan must be intended to achieve a result consistent with the objectives of the Bankruptcy Code. Stolrow v. Stolrow’s, Inc. (In re Stolrow’s, Inc.), 84 B.R. 167, 172 (Bankr. 9th Cir.1988); Jorgensen v. Federal Land Bank of Spokane (In re Jorgensen), 66 B.R. 104, 108-09 (Bankr. 9th Cir.1986). Granting the district court’s findings substantial deference, we find no absence of good faith on the part of the Louis in proposing this plan. The Louis's plan appears to be a fair and well-reasoned effort to end the years of litigation surrounding the Corey and Ellis bankruptcies; it results in payment in full of all creditors, with a substantial portion of the estate remaining in the debtor, an uncommon result in bankruptcy proceedings. The district court was well within its discretion in approving the plan. B. Ownership of the Silversword Inn Central to this dispute is the question of ownership of the Silversword Inn. Appellants raise a number of objections, both procedural and substantive, to the district court’s finding that Corey owns the Inn. We address each of these in turn. 1. Appellants first challenge the district court’s sua sponte order of April 7, 1988, vacating its earlier order dismissing adversary proceedings Nos. 72-391(3) and 72-391(4). They contend that Fed.R.Civ.P. 60(b), as made applicable by Bankr.R. 9024, prohibits a district court from vacating an earlier decision on its own motion. They further argue that the dismissal of Nos. 72-391(3) and 72-391(4) bars Corey from litigating ownership of the Inn. Thus, appellants contend, because the earlier dismissal was improperly vacated, the district court’s judgment finding" }, { "docid": "18591158", "title": "", "text": "the property; and vi. The Louis are entitled to possession of the property as against Plaintiffs and Additional Counterclaim Defendant Kulalani, Ltd., and their transferees during the pendency of these adversary proceedings, if any, from March 5, 1980, the date upon which the Lis Pendens filed in Bankruptcy No. 72-391(3) on March 3, 1980 was recorded with the Bureau of Conveyances of the State of Hawaii. The bankruptcy court further directed plaintiffs (by this time, Lillian had been redesignated as a defendant) and counterclaim defendant Kulalani, an alleged alter ego of Ellis, to deliver possession of the property to the Louis forthwith and enjoined the same parties from recording with the state Bureau of Conveyances any document depending for its validity on the “mortgage theory” already rejected by the bankruptcy court. Kulalani had come into the picture on September 1, 1980, when Ellis conveyed his interest in the property to Kulalani for a purchase price of $766,475.77. The conveyance was intended to maintain between Lillian and Kulalani the mortgagee-mortgagor relationship that purportedly had existed between Lillian and Ellis. Lillian and the plaintiffs in the bankruptcy proceeding filed a notice of appeal from the bankruptcy court’s adverse rulings on February 12, 1981, which was followed by a flurry of motions in the bankruptcy court and here for stays, and joinders in the appeal by other parties. On March 26, a motions panel of this court entered the following order: The court finds that the notice of appeal filed on February 12, 1981, February 19, 1981, and March 12, 1981 [amended notices of appeal] were timely, but were incorrectly directed to this court rather than to the district court. Therefore, the appeal is dismissed for lack of jurisdiction and the notices of appeal shall be forwarded by the clerk of this court to the district court for processing. Appellants’ emergency motion for stay pending appeal is denied as moot, since this court lacks jurisdiction over the appeal. This order is without prejudice to appellants moving for further relief in the district court. Appellants moved for reconsideration of the dismissal contending that orders" }, { "docid": "4690519", "title": "", "text": "is characterized as one for ejectment, which is legal in nature. See Fort Mojave Tribe v. Lafollette, 478 F.2d 1016, 1018 n. 3 (9th Cir.1973); see also Navajo Tribe of Indians v. New Mexico, 809 F.2d 1455, 1462 n. 15 (10th Cir.1987). In this case, Corey, who is not in possession, is seeking to establish title against Ellis and his entities, who are in possession. Unlike the typical action for ejectment, however, the trial to determine ownership of the Inn did not result directly in an order dispossessing Ellis of the Inn. It was not until three months after the judgment that Corey obtained possession of the Inn pursuant to 11 U.S.C. § 542(a) (1988), which requires an entity in possession of the debtor’s property to deliver that property to the debtor or the trustee. Because we hold that the Auna Foundation was not entitled to a jury trial as an instrumentality of Ellis, we need not express an opinion as to whether there is generally a right to a jury trial under section 542. . We also note the unorthodox way in which the Auna Foundation became involved in this action. Rather than formally filing a claim of ownership of the Inn and moving to intervene in the proceedings, the Foundation's lawyer, who is also counsel for a number of the other Ellis-controlled entities, added the Foundation's name to various motions filed a few days before the trial. The Foundation never obtained independent counsel, and its litigation posture was identical to that of other Ellis entities. Having failed to go through the normal mechanics for joining as a party in an ongoing district court proceeding, the Foundation failed to establish an independent presence in the litigation. . We note, by way of analogy, that instrumen-talities of foreign nations, which also are not protected by the seventh amendment, are not entitled to jury trials. See Arango v. Guzman Travel Advisors, 761 F.2d 1527, 1534-35 (11th Cir.), cert. denied sub nom., Arango v. Compania Dominicana de Aviacion, 474 U.S. 995, 106 S.Ct. 408, 88 L.Ed.2d 359 (1985); Goar v. Compania Peruana" }, { "docid": "4690517", "title": "", "text": "record shows clearly that, to the extent the learned district judge was inclined to rule against appellants, this was the product of his knowledge of the facts of the case gained during judicial proceedings, not of any extrajudicial information. F. Conclusion Appellants make a variety of other arguments, too numerous and too insubstantial to discuss in any detail. Suffice it to say that we have studied the voluminous record in this case thoroughly and have given careful consideration to all of appellants’ contentions. We find no error that would warrant reversal of the judgments below. The bankruptcy court did an admirable job with a difficult case. Doubtless, not everyone is satisfied with the result; perhaps no one is completely satisfied. Yet, there must be an end to every dispute so that the parties may go on with their lives unburdened by the demands and risks of litigation, and the court may turn its attention to other cases. After two decades of litigation, that point has been reached. This case is at an end. . The Honorable Martin Pence, Senior District Judge, presided over Corey’s Chapter 11 proceedings because Hawaii’s only bankruptcy judge recused himself. We treat an appeal from the decision of a district judge in a bankruptcy proceeding as an appeal from the final decision of a district court appealable under 28 U.S.C. § 1291 (1982). Klenske v. Goo (In re Manoa Fin. Co.), 781 F.2d 1370, 1372 (9th Cir.1986) (per curiam), cert. denied sub nom., Yamamoto v. Klenske, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987). . Appellant Kulalani also appeals the court’s denial of its request for a jury trial. However, by its own admission, Kulalani neither held title nor possession of the Silversword Inn at the time of trial. Thus, we see no basis for its participation as a party. Because Kulalani could not legitimately claim an interest in the Inn, there were no issues of fact for a jury to consider. . Generally when a party not in possession seeks to establish title to land against one who is in possession, the action" }, { "docid": "18888195", "title": "", "text": "to appeal. No such limitation was placed on the U.S. Trustee’s right to appeal, however, indicating that Congress did not intend to limit the U.S. Trustee’s appellate standing. We agree with the Sixth Circuit’s analysis in Reveo, and sustain the U.S. Trustee’s standing to seek review here. JURISDICTION OF THE COURT OF APPEALS (1) Another threshold question is whether relief is properly sought from the court of appeals pursuant to 28 U.S.C. § 1291 or 28 U.S.C. § 1651, or whether an appeal should first have been taken to the district court pursuant to 28 U.S.C. § 158(a) . The district judge who heard this case assumed throughout that he was acting as a bankruptcy judge, rather than as a district judge sitting in bankruptcy. If the decision to appoint Mr. Fuste as trustee were, in fact, that of a substitute bankruptcy judge, appeal therefrom would lie to the district court pursuant to 28 U.S.C. § 158(a). If the decision was that of a district court sitting in bankruptcy, however, appeal from a final decision would lie to the court of appeals pursuant to 28 U.S.C. § 1291. We hold that when Chief District Judge Perez-Gimenez sat in lieu of the recused bankruptcy judges, he was exercising the district court’s original jurisdiction over bankruptcy cases rather than acting as if he himself were a temporary member of the bankruptcy court. An appeal, therefore, lies to the court of appeals pursuant to 28 U.S.C. § 1291. Our view is the same as that of the Ninth Circuit in In re Manoa Finance Company, Inc., 781 F.2d 1370 (9th Cir.1986), cert. denied, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987). There as here a district judge assumed control of a bankruptcy case following a bankruptcy judge’s recusal. The Ninth Circuit held that a bankruptcy decision by a district judge can only be a decision of the district court. The judge’s assertion that he is “sitting as the bankruptcy court” does not change this fact. Id. at 1372. In holding that the appeal from the district judge’s decision was properly made" }, { "docid": "4690518", "title": "", "text": "Honorable Martin Pence, Senior District Judge, presided over Corey’s Chapter 11 proceedings because Hawaii’s only bankruptcy judge recused himself. We treat an appeal from the decision of a district judge in a bankruptcy proceeding as an appeal from the final decision of a district court appealable under 28 U.S.C. § 1291 (1982). Klenske v. Goo (In re Manoa Fin. Co.), 781 F.2d 1370, 1372 (9th Cir.1986) (per curiam), cert. denied sub nom., Yamamoto v. Klenske, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987). . Appellant Kulalani also appeals the court’s denial of its request for a jury trial. However, by its own admission, Kulalani neither held title nor possession of the Silversword Inn at the time of trial. Thus, we see no basis for its participation as a party. Because Kulalani could not legitimately claim an interest in the Inn, there were no issues of fact for a jury to consider. . Generally when a party not in possession seeks to establish title to land against one who is in possession, the action is characterized as one for ejectment, which is legal in nature. See Fort Mojave Tribe v. Lafollette, 478 F.2d 1016, 1018 n. 3 (9th Cir.1973); see also Navajo Tribe of Indians v. New Mexico, 809 F.2d 1455, 1462 n. 15 (10th Cir.1987). In this case, Corey, who is not in possession, is seeking to establish title against Ellis and his entities, who are in possession. Unlike the typical action for ejectment, however, the trial to determine ownership of the Inn did not result directly in an order dispossessing Ellis of the Inn. It was not until three months after the judgment that Corey obtained possession of the Inn pursuant to 11 U.S.C. § 542(a) (1988), which requires an entity in possession of the debtor’s property to deliver that property to the debtor or the trustee. Because we hold that the Auna Foundation was not entitled to a jury trial as an instrumentality of Ellis, we need not express an opinion as to whether there is generally a right to a jury trial under section 542." }, { "docid": "4690491", "title": "", "text": "KOZINSKI, Circuit Judge: Who owns the Silversword Inn? This seemingly innocuous question has been litigated vigorously for nearly two decades in various bankruptcy proceedings and in the state courts of Hawaii. We resolve this and many other questions today and, in so doing, put an end to a dispute that has consumed a disproportionate share of our legal system’s energy and resources. I The facts of this case, many of which are set forth in greater detail in our earlier opinion, Ellis v. Corey (In re Ellis), 674 F.2d 1238 (9th Cir.1982), are largely not in dispute. In March 1971, William Ellis, then a Chapter XII debtor under the Bankruptcy Act of 1898, conveyed two adjoining parcels on the island of Maui to Bessie Hagopi-an. Located on one parcel was the Silvers-word Inn. Under the terms of the Ellis-Hagopian conveyance, Lillian Corey, Hagopian’s sister, was to pay Ellis $85,500. In return, Ellis was to transfer to Hagopian title to the parcels “free and clear of all encumbrances,” but subject to two important exceptions. First, Hagopian agreed to be bound by existing lease agreements that permitted the Silversword Corporation, an entity controlled by Ellis, to occupy and operate the Inn. Second, Hagopian’s title was subject to an exclusive option held by Ellis to repurchase the Inn. The option provided: Now, therefore, the Purchaser, in consideration of the premises and of the foregoing conveyance to her, does hereby give to the Sellers an exclusive option for a period of two (2) years from the date hereof, to purchase from the Purchaser all of the interest of the Purchaser in said Lot 2 described in said Deed for the sum of EIGHTY-FIVE THOUSAND & No/100 DOLLARS ($85,000.00) plus five percent (5%) thereof per annum from the date hereof, and all of the interest of the Purchaser in said Lot 4 for the sum of ONE THOUSAND & No/100 DOLLARS ($1,000.00) plus five percent (5%) thereof per annum from the date hereof; PROVIDED, HOWEVER, that the foregoing option may not be exercised sooner than September 1, 1971; Option, and Consent to Pledge and Assignment" }, { "docid": "10023748", "title": "", "text": "other bankruptcy cases we found jurisdiction to consider the district court’s order granting relief from the automatic stay. Id. With respect to the withdrawal of reference, we found no precedent and concluded that the withdrawal did not satisfy the requirements of the collateral order doctrine. Id. at 806. Subsequently we considered our jurisdiction over an order of the district court upholding the constitutionality of the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 333. Benny v. England (In re Benny), 791 F.2d 712 (9th Cir.1986). Because the district court had withdrawn its reference to the bankruptcy court, we held that § 158(d) did not afford jurisdiction. Id. at 718. We then assessed our jurisdiction under § 1291, recognizing that finality standards might differ. “Nevertheless, even assuming that this more flexible doctrine [ (referring to § 158(d) finality standards) ] is appropriate for bankruptcy appeals brought under section 1291, the circumstances of this appeal still do not present an appealable order.” Id. (footnote omitted). In a footnote, we explicitly acknowledged that the standard for finality under § 1291 might be more strict than that under § 158(d). Id. n. 7. Because we found the order not appealable under § 158(d)’s (arguably) more liberal standards, we concluded that we certainly did not have jurisdiction under § 1291. Id. at 719 (also concluding that Cohen’s collateral order doctrine did not apply). When a district court sitting as a bankruptcy trial court ordered a former director of the debtor to turn over stock to the bankruptcy trustee, we addressed the issue we had avoided in Benny. Cannon v. Ha waii Corp. (In re Hawaii Corp.), 796 F.2d 1139 (9th Cir.1986). We explained: We, however, have developed liberalized rules of finality for bankruptcy eases arising under section 158(d). Because [Klenske v.] Goo [ (In re Manoa Finance), 781 F.2d 1370 (9th Cir.1986), cert. denied sub nom. Yamamoto v. Klenske, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987),] states that our jurisdiction in cases like the instant action arises under section 1291 and not section 158(d), we hold that" } ]

[ { "docid": "23185147", "title": "", "text": "the record. Her physical complaints during this time period related almost exclusively to problems with her hip, and not to her neck impairment which she claims as her disability. In fact, her spinal condition appeared to improve during this period, and the physical examination in the nearest proximity to the time at issue (Dr. Mock’s — November 1973) noted no other remarkable findings regarding Meredith’s head, neck, or shoulders. While we sympathize with the claimant and her physical problems and we realize that she was diagnosed as totally disabled by Drs. Kachmann and Stibbens in 1984, these diagnoses simply are not relevant to her physical condition some eleven years earlier in 1973 when her insured status expired. One final issue deserves our attention. In her brief, Meredith claims that the Secretary bore the burden of proving that Meredith’s condition had improved because she was found to be disabled from May 1967 to December 1969, and this created a presumption of continuing disability. While this may be true in a case where the Secretary seeks to terminate disability benefits, see, e.g., Haynes v. Secretary of Health and Human Services, 734 F.2d 284 (6th Cir.1984), a claimant seeking benefits under the Social Security Act has the burden of proving the existence of a disability. Lauer v. Bowen, 818 F.2d 636, 638 (7th Cir.1987) (per curiam). In this case, Meredith was seeking disability benefits after her original benefits period had terminated. Thus, she bore the burden of proving that she was disabled. The decision of the district court is Reversed, and the AU’s decision that Meredith was not entitled to disability benefits for the first three months of 1973 is Affirmed. . In order to receive Title II disability insurance benefits, Meredith had to prove she was disabled on or before the date that her insured status expired. See 42 U.S.C. § 416(i)(3). See also Jeralds v. Richardson, 445 F.2d 36 (7th Cir.1971) (no benefits if disability occurred after insurance lapsed). . As the district court correctly noted, Meredith would normally be precluded from relitigating the administrative determination that she was not entitled" } ]

[ { "docid": "6848694", "title": "", "text": "evidence, or deciding questions of credibility. See Diaz, 55 F.3d at 305, 308; Luna v. Shalala, 22 F.3d 687, 689 (7th Cir.1994); Cass v. Shalala, 8 F.3d 552, 555 (7th Cir.1993). No one disputes that Estok currently suffers from fibromyalgia and may now be totally disabled. In addition, no one questions that fibromyalgia is very difficult to diagnose, that no objective medical tests reveal its presence, and that it can be completely disabling. See Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996). Estok essentially argues that the ALJ failed to recognize that a retrospective diagnosis of fibromyalgia is substantial evidence of disability during the relevant insured period. The bottom line in this case, therefore, is that whatever the diagnosis — tarsal tunnel of the ankles and feet, or fibromyalgia throughout the body — Estok must provide sufficient evidence of actual disability before December 31,1992. Benefits are available only to those individuals who can establish disability under the terms of the Social Security Act. The claimant must show that she is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A). Here, the record does not mandate a finding that Estok became disabled before the relevant period ended on December 31,1992. We first look at the problem of using retrospective diagnoses in Social Security eases. A physician’s retrospective diagnosis is a medical opinion of the claimant’s impairments which relates back to the covered period. See, e.g., Likes v. Callahan, 112 F.3d 189, 190-91 (5th Cir.1997); Vogt v. Chater, 958 F.Supp. 537 (D.Kan.1997). The ALJ believed that the retrospective diagnosis offered on remand from the Appeals Council was too speculative. The key medical opinion focused on by the parties and the ALJ was provided by Dr. Brian Mandell, a rheumatologist in Cleveland, Ohio. Dr. Mandell wrote on January 5, 1994 that he had examined Estok on December 27, 1993 and diagnosed" }, { "docid": "22288453", "title": "", "text": "made by the administrative law judge levels. See 20 C.F.R. § 404.1512(b)(1)-(6). However, the determinations of other agencies, while persuasive, do not bind the' Social Security Administration. See 20 C.F.R. § 404.1504. “[Established policy provides that information may be obtained from family members, friends, and former employers regarding the course of the claimant’s condition.” Ivy, 898 F.2d at 1049. “[N]oncontemporaneous medical records are relevant to the determination of whether onset occurred on the date alleged by the claimant.” Id. (citing Basinger v. Heckler, 725 F.2d 1166 (8th Cir.1984); Soc.Sec.R. 83-20, 1983 CE 109). In determining whether a claimant’s physical or mental impairments are of a sufficient medical severity as could be the basis of eligibility under the law, the ALJ is required to consider the combined effects of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. See 20 C.F.R. § 404.1523; Crowley v.. Apfel, 197 F.3d 194, 197 (5th Cir.1999); Anthony, 954 F.2d at 293; Sewell, 764 F.2d at 294; Davis, 748 F.2d at 296; Estran, 745 F.2d at 341. If the ALJ finds a medically severe combination of impairments, “the combined impact of the impairments will be considered throughout the disability determination process.” 20 C.F.R. § 404.1523. Finally, it is clear that the ALJ must consider all the record evidence and cannot “pick and choose” only the evidence that supports his position. See Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir.1984); Garfield v. Schweiker, 732 F.2d 605, 609 (7th Cir.1984); Green v. Shalala, 852 F.Supp. 558, 568 (N.D.Tex. 1994); Armstrong v. Sullivan, 814 F.Supp. 1364, 1373 (W.D.Tex.1993). A claimant is eligible for benefits only if the onset of the qualifying medical impairment [or combination of impairments] began on or before the date the claimant was last insured. See Ivy, 898 F.2d at 1048 (citing POMS § KI 25501.050(B)(1)). “Claimants bear the burden of establishing a disabling condition before the expiration of their insured status.” Id. (citing Milam v. Bowen, 782 F.2d 1284 (5th Cir.1986)). Factors relevant to the determination of the date of disability include the individual’s declaration of" }, { "docid": "19077469", "title": "", "text": "F.3d 329, 333 (7th Cir.1994). However, the district court is required to critically review the evidence and not simply rubber-stamp the Commissioner’s decision. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir.2000). III. Discussion “Benefits are available only to those individuals who can establish disability under the terms of the Social Security Act.” Estok v. Apfel, 152 F.3d 636, 638 (7th.Cir.1998). Under section 423(e)(l)(B)(l), it is well established that to receive benefits, a disability must have begun or had its inception during the period of insured status. Bastian v. Schweiker, 712 F.2d 1278, 1280 (8th Cir.1983); Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir.), cert.denied, 444 U.S. 952, 100 S.Ct. 428, 62 L.Ed.2d 323 (1979). The Seventh Circuit has established that a claimant has the burden of establishing that he is disabled within the meaning of the Social Security Act on or before the date his insured status expired. Estok v. Apfel, 152 F.3d 636, 640 (7th Cir.1998); Meredith v. Bowen, 833 F.2d 650 (7th Cir.1987); Owens v. Heckler, 770 F.2d 1276, 1280 (5th Cir.1985); Garner v. Heckler, 745 F.2d 383, 390 (6th Cir.1984); Jeralds v. Richardson, 445 F.2d 36, 39 (7th Cir.1971). “The law requires that a claimant demonstrate her disability within the proscribed period of eligibility not prior to or subsequent to the dates in question.” Jeralds, 445 F.2d at 39. Therefore, “any condition that had its onset or became disabling after plaintiffs insured status expired may not be used as a basis for entitlement to disability benefits.” Couch v. Schweiker, 555 F.Supp. 651, 654 (N.D.Ind.1982). Plaintiff bears the burden of showing through testimony and medical evidence supported by clinical data and laboratory diagnosis that he was disabled during the period in which he was insured. Jeralds, 445 F.2d at 38-39; See also Reading v. Mathews, 542 F.2d 993, 997 (7th Cir.1976). The claimant must show that he is “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a" }, { "docid": "4072075", "title": "", "text": "the Social Security Administration’s listed impairments and that she retained the residual functional capacity for her past work. The district court held that substantial evidence on the record as a whole supported these conclusions. This appeal followed. Discussion Our review of an ALJ’s decision to deny Social Security benefits is limited and deferential to the agency. See Ostronski v. Chater, 94 F.3d 413, 416 (8th Cir.1996). We will not disturb an ALJ’s determination if it is supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g); Spradling v. Chater, 126 F.3d 1072, 1073-74 (8th Cir.1997); Whitehouse v. Sullivan, 949 F.2d 1005, 1006 (8th Cir.1991). This standard requires us to consider relevant evidence which a reasonable mind would accept as adequate to support the Commissioner’s conclusion, Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir.1993), as well as evidence that detracts from the Commissioner’s decision, Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir.1992). We may not reverse the Commissioner’s decision merely because substantial evidence exists supporting a different outcome. See Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir.1993). In order to receive disability insurance benefits, an applicant must establish that she was disabled before the expiration of her insured status. See 42 U.S.C. §§ 416(i), 423(c); Stephens v. Shalala, 46 F.3d 37, 39 (8th Cir.1995) (per curiam) (citing Battles v. Sullivan, 902 F.2d 657, 659 (8th Cir.1990)). Evidence of a disability subsequent to the expiration of one’s insured status can be relevant, however, in helping to elucidate a medical condition during the time for which benefits might be rewarded. See Fowler v. Bowen, 866 F.2d 249, 252 (8th Cir.1989) (Fowler); Martonik v. Heckler, 773 F.2d 236, 240-41 (8th Cir.1985) (Martonik). But see Milton v. Schweiker, 669 F.2d 554, 555 n. 1 (8th Cir.1982) (per curiam) (noting that a heart attack subsequent to the expiration of insured status without evidence of a heart condition during the relevant time period cannot serve as a basis for recovering disability benefits). The five-step sequential standard is the test by which an ALJ determines if a claimant is disabled." }, { "docid": "8958895", "title": "", "text": "in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months....” 42 U.S.C. § 416(i)(l); 42 U.S.C. § 423(d)(1)(A). A physical or mental impairment is “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). It is not enough for plaintiff to establish that an impairment exists. It must be shown that the impairment is severe enough to preclude plaintiff from engaging in substantial gainful activity. Gotshaw v. Ribicojf, 307 F.2d 840 (4th Cir.1962), cert, denied, 372 U.S. 945, 83 S.Ct. 938, 9 L.Ed.2d 970 (1963); Garcia v. Califano, 463 F.Supp. 1098 (N.D.I11.1979). It is well established that the burden of proving entitlement to disability insurance benefits is on the plaintiff. See Jeralds v. Richardson, 445 F.2d 36 (7th Cir.1971); Kutchman v. Cohen, 425 F.2d 20 (7th Cir. 1970). Given the foregoing framework, “[t]he question before [this court] is whether the record as a whole contains substantial evidence to support the [Commissioner’s] findings.” Garfield v. Schweiker, 732 F.2d 605, 607 (7th Cir.1984) citing Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir. 1982); 42 U.S.C. § 405(g). “Substantial evidence is defined as ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir.1984) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971)); see Allen v. Weinberger, 552 F.2d 781, 784 (7th Cir.1977). “If the record contains such support [it] must [be] affirmed, 42 U.S.C. § 405(g), unless there has been an error of law.” Garfield, supra at 607; see also Schmoll v. Harris, 636 F.2d 1146, 1150 (7th Cir.1980). In the present matter, after consideration of the entire record, the Administrative Law Judge (“ALJ”) made the following findings: 1.. The claimant met the disability insured status requirements of the Act on April 7, 1995, the date the claimant stated he" }, { "docid": "3409924", "title": "", "text": "on the severity of headaches and back pain was “significant,” there was no evidence that those conditions were present at the time Mitchell’s insured status expired. Finally, the AU held that Mitchell’s “complaints and allegations as to the periods of time prior to December 31, 1981, are found to lack credibility when viewed against all of the evidence.” He did not, however, indicate the evidence to which he referred. The district court affirmed the AU’s dismissal of Mitchell’s complaint, finding that it could “not say that the Secretary’s decision [was] not supported by substantial evidence.” The court wrote that “one could reasonably conclude that the Plaintiff was not disabled prior to the expiration of her insured status, although it is clear that she did indeed have some medical problems at that time.” Accordingly, the court affirmed the Secretary’s decision and dismissed Mitchell’s complaint. On appeal, Mitchell argues that it was reversible error for the ALJ to (1) not indicate explicitly what evidence he relied on in concluding that Mitchell’s subjective complaints of pain were not credible; (2) rely solely on the “grid” regulations and to refuse to call a vocational expert; and (3) reject medical judgments regarding Mitchell’s ability to engage in gainful employment in the absence of any contradictory medical evaluations. In reviewing a denial of social security benefits, this court must determine whether substantial evidence on the record as a whole supports the Secretary’s decision. 42 U.S.C. § 405(g); Bastian v. Schweiker, 712 F.2d 1278, 1280 (8th Cir.1983). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Johnson v. Heckler, 744 F.2d 1333, 1337 (8th Cir. 1984). Even though the evidence presented may conflict, this court’s review of the final administrative decision is limited to deciding whether it is supported by substantial evidence. Wilson v. Schweiker, 681 F.2d 526, 527 (8th Cir.1982). The claimant bears the initial burden of proving that he is unable to perform his past relevant work. McCoy v. Schweiker, 683 F.2d 1138, 1146-47 (8th Cir.1982). “In a case where there exists conflicting allegations and claims," }, { "docid": "19077470", "title": "", "text": "Cir.1985); Garner v. Heckler, 745 F.2d 383, 390 (6th Cir.1984); Jeralds v. Richardson, 445 F.2d 36, 39 (7th Cir.1971). “The law requires that a claimant demonstrate her disability within the proscribed period of eligibility not prior to or subsequent to the dates in question.” Jeralds, 445 F.2d at 39. Therefore, “any condition that had its onset or became disabling after plaintiffs insured status expired may not be used as a basis for entitlement to disability benefits.” Couch v. Schweiker, 555 F.Supp. 651, 654 (N.D.Ind.1982). Plaintiff bears the burden of showing through testimony and medical evidence supported by clinical data and laboratory diagnosis that he was disabled during the period in which he was insured. Jeralds, 445 F.2d at 38-39; See also Reading v. Mathews, 542 F.2d 993, 997 (7th Cir.1976). The claimant must show that he is “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The regulations to the Act create a five-step inquiry in determining whether a claimant is disabled. As previously discussed, the ALJ must consider the applicant’s claim in the following sequence: (1) whether the claimant is currently employed; (2) whether she has a severe impairment; (3) whether her impairment meets or equals one listed by the Secretary; (4) whether the claimant can perform his past work; and (5) whether the claimant is capable of performing any work in the national economy. Clifford 227 F.3d at 868; citing Knight v. Chater, 55 F.3d 309, 313 (7th Cir.1995). “An affirmative answer leads either to the next step, or on Steps 3 and 5, to a finding that the claimant is disabled. Clifford 227 F.3d at 868. A negative answer at any point, other than Step 3, ends the inquiry and leads to a determination that a claim ant is not disabled.” Clifford 227 F.3d at 868. The initial burden in steps one through four is on" }, { "docid": "22765406", "title": "", "text": "is filed after the onset of disability and the person is eligible for benefits, the person will be entitled to benefits for a period beginning at most 12 months before the application was filed. 20 C.F.R. § 404.603(b). . In a retrospective diagnosis case, a \"[c]laimant is not entitled to disability benefits unless he can demonstrate that his disability existed prior to the expiration of his insured status.” Cruz Rivera v. Secretary of Health & Human Servs., 818 F.2d 96, 97 (1st Cir.1986) (citations omitted), cert. denied, 479 U.S. 1042, 107 S.Ct. 903, 93 L.Ed.2d 854 (1987); accord Ivy v. Sullivan, 898 F.2d 1045, 1048 (5th Cir.1990); Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir.1988); Martonik v. Heckler, 773 F.2d 236, 238 (8th Cir.1985); Jeralds v. Richardson, 445 F.2d 36, 38 (7th Cir.1971); Flack v. Cohen, 413 F.2d 278, 279 (4th Cir.1969). The Ninth Circuit has followed this same approach in a long line of cases beginning with Waters v. Gardner, 452 F.2d 855 (9th Cir.1971), in which the court held that a claimant must establish a disability as of the date when the claimant last met the Act’s prior employment criteria. The court noted that “[a]ny deterioration in her condition subsequent to that time is, of course, irrelevant.” Id. at 858; see, e.g., Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir.1993) (finding that claimant, who suffered from degenerative disc disease, must show disability prior to the last date that he met the special earnings requirement); Morgan v. Sullivan, 945 F.2d 1079, 1080 (9th Cir.1991) (finding that the claimant must demonstrate disability prior to his last insured date); Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir.1989) (affirming the Secretary’s finding that the claimant was not disabled before the expiration of her insured status); Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394 (9th Cir.1984) (finding that \"only disabilities existing before that time [expiration of insured status] can trigger insurance benefits\"); Harmon v. Finch, 460 F.2d 1229, 1231 (9th Cir.) (requiring establishment of disability on or before the last date of insured status), cert. denied, 409 U.S." }, { "docid": "23083763", "title": "", "text": "FAGG, Circuit Judge. Andrew Basinger appeals from an order of the district court, 550 F.Supp. 295, affirming the decision of the Secretary of Health and Human Services to deny his application for Social Security disability benefits. Basinger last met his insured status under the Social Security Act on March 31, 1978. Basinger applied for disability benefits on December 30, 1980, alleging he had been disabled since 1977 by multiple impairments stemming from his diabetes. Ba-singer is a 59-year-old male with a tenth grade education. He quit' work in 1973 because his poor health and general weakness was interfering with his ability to perform his duties. Basinger was first diagnosed as a diabetic in 1968. A physician prescribed oral medication for his diabetes, which Basinger continued to take until 1980. Basinger saw his physician intermittently for five years, but then Basinger did not see a physician between 1973 and 1980. In September 1980 Basinger was hospitalized for his diabetes, a slowly degenerative condition which, according to his physician, had become “completely out of control.” In 1981, two physicians stated that as a result of his diabetes, Basinger was permanently and totally disabled. It is evident that Basinger’s ultimately disabling problems began prior to the expiration of his insured status in 1978. We recognize that at least one court has taken the view that in cases involving a latent and degenerative condition, the claimant is entitled to disability benefits if he or she has a present disability that is directly traceable to a condition having its inception before the expiration of disability insurance coverage. See Cassel v. Harris, 493 F.Supp. 1055, 1058 (D.Colo.1980). In this circuit, however, the burden is on the claimant to show the existence of a disability on or before the date that the insurance coverage expires. Bastian v. Schweiker, 712 F.2d 1278, 1279-80 (8th Cir.1983); Milton v. Schweiker, 669 F.2d 554, 555 (8th Cir.1982). Because of Basinger’s failure to see a physician during the relevant time frame, there is little medical evidence in the record on the issue of when Basinger’s condition became disabling. The administrative law judge" }, { "docid": "19077468", "title": "", "text": "138 F.3d 1150, 1152 (7th Cir.1998). Substantial evidence consists of “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 399-400, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). In making a substantial evidence determination, the court will review the record as a whole, but will not reevaluate the facts, reweigh the evidence or substitute its own judgment for that of the Commissioner. Griffith 138 F.3d at 1152; Brewer v. Cha- ter, 103 F.3d 1384, 1391 (7th Cir.1997). That being said, the ALJ must “build an accurate and logical bridge between the evidence and the result.” Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir.2000). With respect to credibility determinations, the ALJ is in the best position to observe the demeanor and veracity of the testifying witnesses. Griffith 138 F.3d at 1152. The court will not disturb the ALJ’s weighing of credibility so long as those determinations are based on some support in the record and are not “patently wrong.” Id.; Herron v. Shalala, 19 F.3d 329, 333 (7th Cir.1994). However, the district court is required to critically review the evidence and not simply rubber-stamp the Commissioner’s decision. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir.2000). III. Discussion “Benefits are available only to those individuals who can establish disability under the terms of the Social Security Act.” Estok v. Apfel, 152 F.3d 636, 638 (7th.Cir.1998). Under section 423(e)(l)(B)(l), it is well established that to receive benefits, a disability must have begun or had its inception during the period of insured status. Bastian v. Schweiker, 712 F.2d 1278, 1280 (8th Cir.1983); Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir.), cert.denied, 444 U.S. 952, 100 S.Ct. 428, 62 L.Ed.2d 323 (1979). The Seventh Circuit has established that a claimant has the burden of establishing that he is disabled within the meaning of the Social Security Act on or before the date his insured status expired. Estok v. Apfel, 152 F.3d 636, 640 (7th Cir.1998); Meredith v. Bowen, 833 F.2d 650 (7th Cir.1987); Owens v. Heckler, 770 F.2d 1276, 1280 (5th" }, { "docid": "22765391", "title": "", "text": "has endorsed the relation-back theory for latent disabilities, see Harvey L. McCormick, Social Security Claims and Procedures § 401, at 333 (4th ed. 1991), that authority relies solely on an early New York district court case, Mann v. Richardson, 323 F.Supp. 175 (S.D.N.Y.1971), which considered the latent condition in combination with other ailments. The Second Circuit later rejected the relation-back theory to find that a claimant who had failed to demonstrate continuous disability from a time prior to the expiration of his insured status was ineligible for disability benefits. See Arnone v. Bowen, 882 F.2d 34 (2d Cir.1989). Nor are the many cases making disability determinations on the basis of a retrospective diagnosis dispositive oh this issue, as Flaten claims. Because the SSA and courts focus on the onset date of the current period of disability in order to decide whether an individual is eligible for benefits for a period of disability that existed on or before the. expiration of insured status, Flaten interprets these cases to buttress her theory that later disabilities may relate back to earlier ones, suggesting that an earlier period of disability satisfies the requirement as stated in the cases. Although these eases could be read to support Flaten’s “prior disability suffices” theory by ignoring the overall statutory schema, these cases are more appropriately interpreted to impose a continuity requirement when a claimant applies for benefits for a current disability after expiration of insured status. The claimant is eligible for coverage only if the current period of disability extends back continuously to an onset date prior to the expiration of insured status. The claimant may establish such continuous disabling severity by means of a retrospective diagnosis. Our interpretation of the statute' to include a continuity requirement is in agreement with all other appellate courts that have considered the issue of recurring disabilities. As the Third Circuit noted, these courts have concluded that “an individual who recovered from a prior disability is not entitled to disability benefits unless he is still insured under the Social Security Act.” Golofski v. Califano, 607 F.2d 1063, 1068 n. 11 (3d" }, { "docid": "22765405", "title": "", "text": "their return to work, we cannot disregard the Social Security Act’s eligibility requirements by adopting a theory such as relation-back that essentially undoes the insured-status link between periods of work and periods of disability benefits. We conclude that the Secretary appropriately interpreted the statute to require onset of the current continuous period of disability prior to expiration of insured status. We also conclude that the Secretary properly discounted the treating physician’s retrospective diagnosis, and that substantial evidence supports the Secretary’s decision that Flaten was not disabled under the Act at the time her insured status expired. Thus, we affirm the district court’s decision upholding the Secretary’s ruling that Flaten is ineligible for disability benefits. . The statute also provides special rules for determining insured status for those who become disabled before the age of 31, or who have already had a period of disability before age 31, or who are statutorily blind. 20 C.F.R. § 404.130(c)-(e). . Note that Flaten did not apply to establish a period of disability for 1976-77. . If an application is filed after the onset of disability and the person is eligible for benefits, the person will be entitled to benefits for a period beginning at most 12 months before the application was filed. 20 C.F.R. § 404.603(b). . In a retrospective diagnosis case, a \"[c]laimant is not entitled to disability benefits unless he can demonstrate that his disability existed prior to the expiration of his insured status.” Cruz Rivera v. Secretary of Health & Human Servs., 818 F.2d 96, 97 (1st Cir.1986) (citations omitted), cert. denied, 479 U.S. 1042, 107 S.Ct. 903, 93 L.Ed.2d 854 (1987); accord Ivy v. Sullivan, 898 F.2d 1045, 1048 (5th Cir.1990); Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir.1988); Martonik v. Heckler, 773 F.2d 236, 238 (8th Cir.1985); Jeralds v. Richardson, 445 F.2d 36, 38 (7th Cir.1971); Flack v. Cohen, 413 F.2d 278, 279 (4th Cir.1969). The Ninth Circuit has followed this same approach in a long line of cases beginning with Waters v. Gardner, 452 F.2d 855 (9th Cir.1971), in which the court held that a claimant" }, { "docid": "20709449", "title": "", "text": "supports our conclusion, that medical evaluations made after the expiration of a claimant’s insured status are relevant to an evaluation of the pre-expiration condition. See Parsons v. Heckler, 739 F.2d 1334, 1340 (8th Cir.1984); Basinger v. Heckler, 725 F.2d 1166, 1169 (8th Cir.1984) (in a claim based on diabetes medical evidence of condition subsequent to expiration of insured status is relevant because it may bear upon the severity of condition before expiration); Poe v. Harris, 644 F.2d 721, 723 n. 2 (8th Cir.1981) (in a case of disabling back pain evidence subsequent to last date of eligibility “is pertinent evidence in that it may disclose the severity and continuity of impairments existing before the earning requirement date”); Boyd v. Heckler, 704 F.2d 1207, 1211 (11th Cir.1983) (that a doctor did not examine the claimant until two years after the expiration of her insured status and then rendered an opinion about an injury which occurred five years earlier “does not render his medical opinion incompetent or irrelevant to the decision in this case”); Wooldridge v. Secretary of HHS, 816 F.2d 157, 160 (4th Cir.1987) (medical evaluations made two years subsequent to expiration of insured status are not automatically barred from consideration and may be relevant to prove a previous disability); Cox v. Heckler, 770 F.2d 411 (4th Cir.1985) (same); Branham v. Heckler, 775 F.2d 1271 (4th Cir.1985) (same); Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir.1981) (a diagnosis even several years after the actual onset of the impairment is entitled to significant weight); Stark v. Weinberger, 497 F.2d 1092, 1097 (7th Cir.1974) (same); McGee v. Bowen, 647 F.Supp. 1238, 1249 (N.D.Ill.1986) (evidence and diagnoses from many years after the expiration of insured status are both admissible and relevant); Hartman v. Bowen, 636 F.Supp. 129, 132 (N.D.Cal.1986) (although plaintiff has to establish that disability existed prior to the expiration date she is “not confined ... to evidence in existence prior to that date”). If the reports from Dr. Chapman, Dr. Kohli and Dr. Robertson are considered as evidence of Smith’s condition during the critical years, it is clear that substantial evidence" }, { "docid": "16559460", "title": "", "text": "medical condition prior to 1998. The ALJ found — and Sienkiewicz does not dispute — that her insured status for purposes of the disability insurance program ended in June 1995. See 42 U.S.C. § 423(a)(1)(A). Because Sienkiew-icz offered no evidence to show that she was disabled during the insured period, the ALJ did not err in denying her application for DIB. See Estok v. Apfel, 152 F.3d 636, 638 (7th Cir.1998). That leaves her claim for SSI benefits. An applicant who cannot establish that she was disabled during the insured period for DIB may still receive SSI benefits if she can establish that she is disabled and has limited means. 42 U.S.C. §§ 1381a, 1382; see also Splude v. Apfel, 165 F.3d 85, 87 (1st Cir.1999) (discussing difference between DIB and SSI benefits). Sienkiewicz contends that the ALJ committed several errors at both Step 3 and Step 5 in finding her not disabled. Sienkiewicz argues generally that the ALJ failed at Step 3 to address whether the combination of her impairments— specifically the impact of her obesity — met or exceeded a listed impairment. See 20 C.F.R. Part 404, Subpart P, App. 1. When an applicant has several medical problems, the ALJ must consider her condition as a whole. Barrett v. Barnhart, 355 F.3d 1065, 1068 (7th Cir.2004). In particular, an applicant’s obesity must be considered in combination with her other impairments. See Clifford v. Apfel, 227 F.3d 863, 873 (7th Cir.2000); SSR 00-3p at *6 (2000); see also SSR 02-lp (2002). The ALJ properly found that Sienkiew-iez’s impairments did not satisfy the Step 3 criteria. Sienkiewicz claims that her obesity may increase the severity of her mus-culoskeletal and pulmonary disorders. See 20 C.F.R. Part 404, Subpart P, App. 1 § 1.00(Q) (obesity may aggravate musculo-skeletal condition); id. § 3.00(1) (obesity may aggravate pulmonary condition). But the ALJ found that Sienkiewicz was obese and nothing suggests that he then disregarded that finding when evaluating whether her various medical conditions met the severity of the listed impairments. Even with her obesity, the ALJ found that Sienkiewicz walked with only a “slight" }, { "docid": "23083764", "title": "", "text": "two physicians stated that as a result of his diabetes, Basinger was permanently and totally disabled. It is evident that Basinger’s ultimately disabling problems began prior to the expiration of his insured status in 1978. We recognize that at least one court has taken the view that in cases involving a latent and degenerative condition, the claimant is entitled to disability benefits if he or she has a present disability that is directly traceable to a condition having its inception before the expiration of disability insurance coverage. See Cassel v. Harris, 493 F.Supp. 1055, 1058 (D.Colo.1980). In this circuit, however, the burden is on the claimant to show the existence of a disability on or before the date that the insurance coverage expires. Bastian v. Schweiker, 712 F.2d 1278, 1279-80 (8th Cir.1983); Milton v. Schweiker, 669 F.2d 554, 555 (8th Cir.1982). Because of Basinger’s failure to see a physician during the relevant time frame, there is little medical evidence in the record on the issue of when Basinger’s condition became disabling. The administrative law judge held that Basinger did not meet his burden of providing medical evidence that he was disabled on or before the expiration of his insured status. The Secretary affirmed the administrative law judge’s decision. The district court noted the absence of evidence concerning the severity of Basinger’s diabetes during the relevant time frame, and conceded that “[wjhether Basinger’s medical problems disabled him prior to March 31, 1978, this Court cannot discern.” In view of the lack of objective medical evidence presented by the claimant, however, the district court affirmed the Secretary’s decision. Because we believe that the administrative law judge failed to give adequate consideration to all of Basinger’s evidence, we reverse the Secretary’s decision and remand for another hearing. Our function on review is to determine whether the Secretary’s decision is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g). See also Baugus v. Secretary of Health and Human Services, 717 F.2d 443, 445 (8th Cir.1983); McMillian v. Schweiker, 697 F.2d 215, 220 (8th Cir.1983). In order to qualify for" }, { "docid": "706802", "title": "", "text": "of February 11, 1976, and therefore render her “not eligible for supplemental security income at any time prior to October 1978.” Tr. 133. Thus that decision does not affect the SSI and other benefits plaintiff has apparently been receiving since October 1978. “It is well established that the burden of proving disability is on the claimant, 42 U.S.C. § 423(d)(5) ... .” Aubeuf v. Schweiker, 649 F.2d 107, 111 (2d Cir. 1981). See also Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980), and Gold v. Secretary of H.E.W., 463 F.2d 38, 41 (2d Cir. 1972). Furthermore, that burden includes the requirement that the claimant’s disability existed prior to the expiration of her insured status. De Nafo v. Finch, 436 F.2d 737 (3d Cir. 1971); Henry v. Gardner, 381 F.2d 191 (6th Cir. 1967), cert. denied, 389 U.S. 993, 88 S.Ct. 492, 19 L.Ed.2d 487 (1967), rehearing denied, 389 U.S. 1060, 88 S.Ct. 797, 19 L.Ed.2d 864 (1968); Toledo v. Secretary of Health, Education and Welfare, 308 F.Supp. 192 (D.P.R.1970), aff’d, 435 F.2d 1297 (1st Cir. 1971). In this case there is no question that plaintiff’s insured status expired on March 31, 1978. Tr. 213. Hence it was essential that medical evidence be available to establish the existence of a qualifying disability prior to that date. Plaintiff cannot sustain her burden of proof solely through her own statements that she was disabled during the insured period and was too ill to work. Ramirez v. Secretary of Health, Education and Welfare, 528 F.2d 902 (1st Cir. 1976); Peterson v. Gardner, 391 F.2d 208 (2d Cir. 1968). Plaintiff was represented by an attorney at the second (supplemental) hearing at which it was agreed that all the medical evidence offered at the 1977 hearing could also be considered as well as any subsequent evidence the attorney wished to present. Tr. 171. Plaintiff testified fully regarding her education in Cuba and her work experience there and here, her illnesses, doctors, medications and activities after she ceased working, including a trip to Miami in March 1980 to see Dr. Jorge Picaza, who had performed" }, { "docid": "4072076", "title": "", "text": "Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir.1993). In order to receive disability insurance benefits, an applicant must establish that she was disabled before the expiration of her insured status. See 42 U.S.C. §§ 416(i), 423(c); Stephens v. Shalala, 46 F.3d 37, 39 (8th Cir.1995) (per curiam) (citing Battles v. Sullivan, 902 F.2d 657, 659 (8th Cir.1990)). Evidence of a disability subsequent to the expiration of one’s insured status can be relevant, however, in helping to elucidate a medical condition during the time for which benefits might be rewarded. See Fowler v. Bowen, 866 F.2d 249, 252 (8th Cir.1989) (Fowler); Martonik v. Heckler, 773 F.2d 236, 240-41 (8th Cir.1985) (Martonik). But see Milton v. Schweiker, 669 F.2d 554, 555 n. 1 (8th Cir.1982) (per curiam) (noting that a heart attack subsequent to the expiration of insured status without evidence of a heart condition during the relevant time period cannot serve as a basis for recovering disability benefits). The five-step sequential standard is the test by which an ALJ determines if a claimant is disabled. 20 C.F.R. § 404.1520. The first step involves a determination of whether the claimant is presently working. Id. § 404.1520(b). The second step involves a determination, based solely on medical evidence, of whether the claimant has a severe impairment or combination of impairments. Id. § 404.1520(e). The third step requires the ALJ to compare this impairment to a Listing of Impairments (Listing) and determine whether it meets or equals one of those listed. Id. § 404.1520(d). If the claimant does not qualify for disability benefits at step three, steps four and five involve a determination of whether the claimant can perform past relevant work or any other work. Id. § 404.1520(e), (f). Pyland argues that the ALJ erred in determining, at step three of the analysis, that her mental impairment did not have the symptoms meeting or equaling a depressive syndrome, which is one of the impairments in the Listing, and did not result in the functional limitations of an affective disorder. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04. To meet" }, { "docid": "6848693", "title": "", "text": "physicians retrospectively surmised, based on their long-term treatment of Estok and the medical records, that Estok had suffered from fibromyalgia even before December 31, 1992. No doctor opined that the initial diagnosis of tarsal tunnel was incorrect, although once fibromyalgia was diagnosed, the diagnosis of tarsal tunnel was mentioned only in a historical context. In any event, at the time of the last hearing in 1995, Estok undisputedly suffered from the rheumatological disease fibromyalgia. This court’s review focuses not on whether Estok was disabled during the relevant period, but instead on whether the ALJ’s findings were supported by substantial evidence. See Diaz v. Chater, 55 F.3d 300, 305 (7th Cir.1995). “Substantial evidence” has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (internal quotations omitted). The court on appeal reviews the entire record but does not substitute its judgment for that of the Commissioner by reconsidering facts, reweighing evidence, resolving conflicts in evidence, or deciding questions of credibility. See Diaz, 55 F.3d at 305, 308; Luna v. Shalala, 22 F.3d 687, 689 (7th Cir.1994); Cass v. Shalala, 8 F.3d 552, 555 (7th Cir.1993). No one disputes that Estok currently suffers from fibromyalgia and may now be totally disabled. In addition, no one questions that fibromyalgia is very difficult to diagnose, that no objective medical tests reveal its presence, and that it can be completely disabling. See Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996). Estok essentially argues that the ALJ failed to recognize that a retrospective diagnosis of fibromyalgia is substantial evidence of disability during the relevant insured period. The bottom line in this case, therefore, is that whatever the diagnosis — tarsal tunnel of the ankles and feet, or fibromyalgia throughout the body — Estok must provide sufficient evidence of actual disability before December 31,1992. Benefits are available only to those individuals who can establish disability under the terms of the Social Security Act. The claimant must show that she is unable to engage in" }, { "docid": "6960837", "title": "", "text": "A claimant is eligible for benefits only if the onset of the qualifying medical impairment began on or before the date the claimant was last insured. POMS § DI 25501.050(B)(1). Claimants bear the burden of establishing a disabling condition before the expiration of their insured status. Milam v. Bowen, 782 F.2d 1284 (5th Cir.1986). Factors relevant to the determination of the date of disability include the individual’s declaration of when her disability began, her work history, and available medical history. Soc.Sec.R. 83-20, 1983 CE 109. The Secretary must use the claimant’s statement alleging when disability began as the starting point in determining the onset of nontraumatic disabilities. Id. The claimant’s stated onset date is used as the established onset date when it is consistent with available evidence. Id. Furthermore, a claimant’s onset date may be rejected only if reasons are articulated and the reasons given are supported by substantial evidence. Mills v. Secretary, No. 82-AR-2268-W, 1988 WL 54673 (N.D.Ala.1988). Substantial evidence has been defined as such “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Ivy unqualifiedly asserts that her condition deteriorated to a disabling state by June 15, 1977. The AU determined that her work history corroborated her alleged onset date because “there is no indication that the claimant has engaged in substantial gainful activity since her alleged onset date.” As noted, however, the AU denied Ivy’s claim because of her failure to offer medical evidence reflecting precise blood pressure readings, height measurements, and weight amounts on the onset date or at least before September 1977. Although medical evidence serves as the primary element in the onset determination, the AU’s restrictive definition of “medical evidence” as contemporaneous clinical test results is incorrect. See Parsons v. Heckler, 739 F.2d 1334 (8th Cir.1984). Medically acceptable evidence includes observations made by a physician during physical examination and is not limited to the narrow strictures of laboratory findings or tests results. Social Security Law and Practice, § 44.3. To hold otherwise would unfairly penalize those" }, { "docid": "2819868", "title": "", "text": "deference should be given his judgment since he heard the witnesses’ testimony and observed their demeanor. Longo v. Weinberger, supra, 369 F.Supp. at 257; Urgolites v. Finch, 316 F.Supp. 1168, 1173 (W.D.Pa.1970). Furthermore, he should reject such testimony, especially pertaining to subjective pain, if he does not find it credible. Farmer v. Weinberger, supra; Pope v. Richardson, supra. This court is ever mindful of the beneficent purpose of the Social Se curity Act and the more tolerant standard to be applied in these administrative proceedings. Hess v. Secretary of Health, Education and Welfare, 497 F.2d 837, 840 (3d Cir. 1974). This is especially true in the case of persons with less than an average educational and income level who do not seek the extensive medical care considered necessary by more affluent citizens. To be eligible for disability benefits, however, a claimant must meet certain minimal requirements. Foremost among these is that she must adequately prove the existence of a disability within the claimant’s period of insured eligibility. The commencement of the disability, after the ending of such eligibility, even if the impairment had its genesis during some eligible time, does not entitle the claimant to disability benefits. Jeralds v. Richardson, 445 F.2d 36, 39 (7th Cir. 1971); Domozik v. Cohen, 413 F.2d 5, 6 n. 3 (3d Cir. 1969). If Mrs. Gardner cannot establish that the impairment to her leg was such that she was disabled within the meaning of the law while she was eligible, she has not met her burden of proof and her claim must fail. A similar case is Kirkland v. Weinberger, 480 F.2d 46 (5th Cir.), cert. denied, 414 U.S. 913, 94 S.Ct. 255, 38 L. Ed.2d 155 (1973), where the court held that while plaintiff did prove that she was presently disabled, she did not offer sufficient evidence to prove she was disabled at any time she was eligible for disability benefits. In this case, if I had been required to make the original determination, I might well have reached a different result. But having reviewed the evidence, I cannot conclude the Secretary’s decision" } ]

[ { "docid": "6503174", "title": "", "text": "to the state court judge before first obtaining permission here to pursue the citation. As earlier noted, Debtor testified that even more questions about his finances were asked by Mr. Howe. That testimony was credible despite denials by Mr. Howe. However, we need not resolve that issue because the acknowledgment by Mr. Howe of one forbidden question and the unhappy consequences that followed is enough to enable ruling here. D. Violation of the stay was willful Section § 362(h) provides: An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages. 11 U.S.C. § 362(h). Debtor is indisputably an individual and thus has standing to invoke a claim for his damages. Willfulness under § 362(h) requires knowledge that a formal bankruptcy petition has been filed, whether through formal notice or otherwise. Price v. Rochford, 947 F.2d 829 (7th Cir.1991). A willful violation of the stay does not require that the creditor had the specific intent to violate the stay. In re Bloom, 875 F.2d 224, 227 (9th Cir.1989). If the violation is particularly egregious, the debtor may be awarded punitive damages as well. In re Atlantic Business & Community Corp., 901 F.2d 325 (3d Cir.1990). This violation of the automatic stay by Mr. Howe in seeking information under authority of the citation proceeding was not inadvertent but rather was willful. He and other Cavenaugh attorneys were aware of Debtor’s bankruptcy. Nonetheless, in accord with instructions from his firm and its practice, Mr. Howe tried to enforce the process of the citation in state court by asking at least one probing question of Debtor. It was the authority of the citation, which has as its purpose to seek and collect a judgment, that Mr. Howe exercised in asking the second question which gave rise to the answer later reported to the state court judge and thereby brought about a series of problems that cost Debtor a significant amount of money and legal fees and ballooned out of control. Because Mr. Howe’s" } ]

[ { "docid": "18775484", "title": "", "text": "stay provided by this sec tion shall recover actual damages, including costs and attorneys’ fees, and in appropriate circumstances, may recover punitive damages. 11 U.S.C. § 362(h). “By using the words ‘shall recover,’ Congress intended that the award of actual damages, costs and attorneys’ fees is mandatory and not within the discretion of the Court.” In re Sansone, 99 B.R. 981, 987 (Bankr.C.D.Cal.1989) (citations omitted). Consequently, an award of damages, costs and attorneys’ fees is mandatory upon a finding of a “willful violation of the stay.” In re Taylor, 884 F.2d 478, 483 (9th Cir.1989). Additionally, an award of attorneys’ fees “is appropriate where an initial violation of the stay is followed by [the aggrieved party] having to resort to the courts to enforce his rights.” In re Sansone, 99 B.R. at 987. Section 362(h) provides that an aggrieved party shall recover “actual damages,” including attorneys’ fees and costs. Attorneys’ fees incurred as a result of a violation of the automatic stay are “actual damages.” In re Bloom, 875 F.2d 224, 227 (9th Cir.1989). The Ninth Circuit has determined that a showing of bad faith or harassment is not required for a finding of a willful violation of the automatic stay or for an award of attorneys’ fees under § 362(h). Bloom, 875 F.2d at 227. The meaning of “willful” as it is used in § 362(h) has been defined as follows: A “willful violation” does not require a specific intent to violate the automatic stay. Rather, the statute provides for damages upon a finding that the defendant knew of the automatic stay and that the defendant’s actions which violated the stay were intentional. Bloom, 875 F.2d at 227 (citation omitted). Knowledge of the bankruptcy filing is the legal equivalent of knowledge of the automatic stay provided under § 362. In re Zartun, 30 B.R. 543, 546 (9th Cir. BAP 1983). “[W]hether the party believes in good faith that it had a right to the property is not relevant to whether the act was ‘willful’ or whether compensation must be awarded.” Bloom, 875 F.2d at 227. Additionally, a party’s violation" }, { "docid": "8727368", "title": "", "text": "claim against the debtor that arose before the commencement of the case under this title; .... 11 U.S.C. § 362(a). Section 362(h) creates a statutory remedy for individual debtors who are injured by a violation of the automatic stay. It provides: (h) An individual injured by any 'willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages. 11 U.S.C. § 362(h). “The words ‘shall recover’ indicate that Congress intended that the award of actual damages, costs and attorney’s fees be mandatory upon a finding of a willful violation of the stay.” Ramirez, 183 B.R. at 589. An award of actual damages under § 362(h) requires a showing by the debtor that she sustained an injury from a “willful” violation of the stay. Fernandez v. GE Capital Mortgage Servs., Inc. (In re Fernandez), 227 B.R. 174, 180 (9th Cir. BAP 1998) aff'd mem., 208 F.3d 220 (9th Cir.2000). A “willful violation” does not require specific intent to violate the automatic stay. McHenry v. Key Bank (In re McHenry), 179 B.R. 165, 167 (9th Cir. BAP 1995). A violation of the automatic stay is “willful” if 1) the creditor knew of the stay and 2) the creditor’s actions, which violated the automatic stay, were intentional. Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir.1989); Expeditors Int’l of Wash., Inc. v. Colortran, Inc. (In re Colortran, Inc.), 210 B.R. 823, 826 (9th Cir. BAP 1997), aff'd in part and vacated in part on other grounds, 165 F.3d 35 (9th Cir.1998). Appellant accepts the bankruptcy court’s determination that it willfully violated the automatic stay by filing and serving its collection complaint postpetition. However, Appellant contests the bankruptcy court’s determination that Debtor incurred actual damages as a result of the stay violation. A. Actual Damages Under § 362(h) Appellant contends that Debtor was not injured by the stay violation. We have held that “[ijnjury means actual damages.” Fernandez, 227 B.R. at 180. The bankruptcy court found that Debtor suffered actual damages consisting of $5 in travel" }, { "docid": "6258059", "title": "", "text": "honest debtor an opportunity to protect his assets for a period of time so that the resources might be marshalled to satisfy outstanding obligations.” Laguna Assocs. Ltd. Partnership v. Aetna Casualty & Sur. Co. (In re Laguna Assocs. Ltd. Partnership), 30 F.3d 734, 737 (6th Cir.1994). The Debtors filed their Chapter 7 petition on April 11, 1996. This event simultaneously activated the automatic stay, barring all actions outlined in § 362(a). It is undisputed that the Defendant inserted a date in the certificate of acknowledgment and re-registered the Deed of Trust on July 12, 1996. As of this date, the stay had not been lifted by the court and the Defendant did not seek relief from the stay to perform this act. The court agrees with the Trustee that the act constitutes a violation of the automatic stay under § 362(a)(4), constituting an attempt to perfect a lien against property of the estate. Moreover, the court agrees with the Trustee that this violation of the automatic stay was willful. A violation of the stay is willful if the creditor deliberately carried out the prohibited act with knowledge of the debtor’s bankruptcy case. Matthews v. United States (In re Matthews), 184 B.R. 594, 599 (Bankr.S.D.Ala.1995); In re Timbs, 178 B.R. 989, 997 (Bankr.E.D.Tenn. 1994); Hudson v. United States (In re Hudson), 168 B.R. 449, 453 (Bankr.S.D.Ga.1994); Temlock v. Falls Bldg., Ltd. (In re Falls Bldg., Ltd.), 94 B.R. 471, 481-82 (Bankr.E.D.Tenn.1988). Culpable parties can be sanctioned for willful violations of the automatic stay under 11 U.S.C.A. § 362(h) (West 1993), which provides as follows: An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages. Under this section, a Chapter 7 trustee can recover actual damages sustained by the bankruptcy estate resulting from willful violations of the stay. Martino v. First Nat’l Bank (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414, 439 (N.D.Ill.1995). The trustee’s attorney fees attributable to the § 362 issue constitute one form of such damages. Id." }, { "docid": "108926", "title": "", "text": "separate from the contempt power, § 362(h) authorizes the imposition of sanctions for willful violations of the automatic stay, where the debtor is an individual. There is no provision under § 524 analogous to § 362(h). Section 362(h) provides: An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages. A recovery under this section is available only to individual debtors, a condition that is satisfied in this case. For the purposes of § 362(h), the Ninth Circuit has defined “willful” as follows: A “willful violation” does not require a specific intent to violate the automatic stay. Rather, the statute provides for damages upon a finding that the defendant knew of the automatic stay and that the defendant’s actions which violated the stay were intentional. Whether the party believes in good faith that it had a right to [take the action it did] is not relevant to whether the act was “willful” or whether compensation must be awarded. Havelock v. Taxel (In re Pace), 67 F.3d 187, 191 (9th Cir.1995) The only meaningful difference between awarding damages under § 362(h), as opposed to damages for contempt, is that relief under § 362 is mandatory, while relief under contempt is discretionary. California Employment Dev. Dep’t v. Taxel (In re Del Mission Ltd.), 98 F.3d 1147, 1152-53 (9th Cir.1996); Pace, 67 F.3d at 193. Damages awarded under § 362(h) are statutory damages, not damages based on contempt. See Ramirez v. Fuselier (In re Ramirez), 183 B.R. 583, 589 (9th Cir. BAP 1995), appeal dismissed, 201 F.3d 444, 1999 WL 831916 (9th Cir. 1999) (awarding damages under § 362(h) at time when Ninth Circuit case law denied contempt power to bankruptcy courts). The court finds that the actions by Associates after November 28, 1997 were willful, for contempt purposes. Associates learned on that date that the debtors had filed a bankruptcy case, invoking the automatic stay. Nonetheless, Associates thereafter undertook many direct, harassing, coercive collection efforts toward plaintiffs during the automatic stay. These" }, { "docid": "21859718", "title": "", "text": "which are corporations or other like entities. Such a narrow construction of the term would defeat much of the purpose of the section, and we construe the word “individual” to include a corporate debtor. 804 F.2d at 292. The Court of Appeals has determined that the definition of the word “individual” in § 362(h) must be viewed in the context of the purpose of the section. Id. (construing § 362(h) narrowly would defeat purpose of the statute). Other courts have awarded damages to trustees and/or noted that trustees are entitled to recover pursuant to § 362(h). See, e.g., Johnson, 230 B.R. at 470-71; In re Medlin, 201 B.R. 188; 194 (Bankr.E.D.Tenn.1996); Martino v. First Nat’l Bank of Harvey (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414, 439 (N.D.Ill.1995); In re Fugazy Exp., Inc., 124 B.R. 426, 431 (S.D.N.Y.1991). Nissan relies upon a holding by the Ninth Circuit Court of Appeals which held that a trustee is ineligible to receive damages under the private cause of action created by § 362(h) because a trustee is not an “individual.” In re Pace, 67 F.3d 187, 192 (9th Cir.1995). Accord In re Bequette, 184 B.R. 327, 335 (Bankr.S.D.Ill.1995). However, the Fourth Circuit’s arguably broad interpretation of the meaning of the statute lends support for an award of attorney’s fees and costs to the Trustee pursuant to § 362(h). The Court further notes that the Ninth Circuit in Pace, as well as other courts, have recognized that a trustee can recover damages in the form of costs and attorney’s fees under § 105(a) as a sanction for ordinary civil contempt. Id. at 193. See also In re Dyer, 322 F.3d 1178, 1189-1193 (9th Cir.2003) (although trustee was not an “individual,” trustee may be entitled to damages as sanction for creditor’s contempt in violating stay); Henkel v. Lickman (In re Lickman), 297 B.R. 162, 194-95 (Bankr.M.D.Fla.2003) (trustees are awarded damages and attorney’s fees under § 105 for violation of automatic stay; question of whether trustee is “individual” only relevant when court considers award of punitive damages). Under these authorities the Court finds that both" }, { "docid": "20232776", "title": "", "text": "receiving the Chapter 7 trustee’s objection to his claimed exemption of the Inherited IRA, Horace withdrew an additional $20,000. Section 362(h) of the Bankruptcy Code provides that an individual is entitled to recover damages, attorney’s fees, and costs, and, possibly, punitive damages due to a willful violation of the automatic stay. Although there is a split of authority as to whether a trustee for the bankruptcy estate of a corporate debtor is an “individual” for purposes of § 362(h), the Chapter 7 trustee in this case is an individual representing the estate of individual, consumer debtors and has standing to bring an action against the Debtors for a willful violation of the automatic stay. See, e.g., In re Garofalo’s Finer Foods, Inc., 186 B.R. 414 (N.D.Ill.1995) (trustee is an “individual” for purposes of § 362(h)). But see, e.g., In re Pace, 67 F.3d 187 (9th Cir.1995) (trustee is not an individual for purposes of § 362(h)). The Chapter 7 trustee, as the party seeking damages pursuant to § 362(h), has the burden of proving what damages were incurred and what relief is appropriate. See, e.g., In re Dunn, 202 B.R. 530, 531 (Bankr.D.N.H.1996) (“The movants ... have the burden of proof with regard to showing ... that the -willful violation caused the movants to suffer harm and incur damages, and then to show what relief is appropriate.”). A violation of the automatic stay is willful if the action is done deliberately. See, e.g., In re Xavier’s of Beville, Inc., 172 B.R. 667, 671 (Bankr.M.D.Fla.1994). Ignorance of the law is no excuse. See, e.g., In re Bragg, 56 B.R. 46, 49 (Bankr.M.D.Ala.1985); In re Halas, 249 B.R. 182, 191 (Bankr.N.D.Ill.2000). A willful violation of the stay does not require a specific intent to violate the stay. See Nissan Motor Acceptance Corp. v. Baker, 239 B.R. 484 (N.D.Tex.1999); In re Zaber, 223 B.R. 102, 107 (Bankr.N.D.Tex.1998). Rather, as the Fifth Circuit recently explained, § 362(h) “provides for damages upon a finding that the defendant knew of the automatic stay and that the defendant’s actions which violated the stay were intentional. Whether the" }, { "docid": "21859717", "title": "", "text": "a trustee is an individual within the meaning of § 362(h) and thus eligible for damages under that section. The leading case in this Circuit interpreting § 362(h) is Budget Service Company v. Better Homes of Virginia, Inc., 804 F.2d 289 (4th Cir.1986), wherein sanctions were awarded to a corporate debtor for violation of .the automatic stay. The Court of Appeals held: We hold that the sanctions imposed by the bankruptcy court which were affirmed by the district court were appropriate under § 362(h). We agree with the reasoning of the bankruptcy court in In re Tel-A-Communications Consultants, 50 B.R. 250 (Bkrtcy.Conn.1985) that § 362(h) must be read in conjunction with the rest of § 362 and that its sanctions are not limited to the relief of an “individual” in the literal sense. The Bankruptcy Code does not define the word individual. We agree that it seems unlikely that Congress meant to give a remedy only to individual debtors against those who willfully violate the automatic stay provisions of the Code as opposed to debtors which are corporations or other like entities. Such a narrow construction of the term would defeat much of the purpose of the section, and we construe the word “individual” to include a corporate debtor. 804 F.2d at 292. The Court of Appeals has determined that the definition of the word “individual” in § 362(h) must be viewed in the context of the purpose of the section. Id. (construing § 362(h) narrowly would defeat purpose of the statute). Other courts have awarded damages to trustees and/or noted that trustees are entitled to recover pursuant to § 362(h). See, e.g., Johnson, 230 B.R. at 470-71; In re Medlin, 201 B.R. 188; 194 (Bankr.E.D.Tenn.1996); Martino v. First Nat’l Bank of Harvey (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414, 439 (N.D.Ill.1995); In re Fugazy Exp., Inc., 124 B.R. 426, 431 (S.D.N.Y.1991). Nissan relies upon a holding by the Ninth Circuit Court of Appeals which held that a trustee is ineligible to receive damages under the private cause of action created by § 362(h) because a trustee is" }, { "docid": "6800340", "title": "", "text": "is intended to stop virtually all debt collection efforts, including efforts to take possession of collateral, e.g., Louisville & Jefferson County Metro. Sewer Dist. v. Excel Eng’g, Inc. (In re Excel Eng’g, Inc.), 224 B.R. 582, 592 (Bankr.W.D.Ky.1998). An act taken in willful violation of the stay subjects the actor to liability for “actual damages, including costs and attorneys’ fees, and, in appropriate circumstances ... punitive damages.” 11 U.S.C. § 362(h). A stay violation is “willful” if a creditor has knowledge of the bankruptcy filing and deliberately acts in such a way that violates the stay. E.g., Flynn v. IRS (In re Flynn), 169 B.R. 1007, 1013-14 (Bankr.S.D.Ga.1994) (Davis, J.), aff'd in part, rev’d in part, 185 B.R. 89 (S.D.Ga.1995); see also, e.g., Goichman v. Bloom (In re Bloom), 875 F.2d 224, 227 (9th Cir.1989) (noting that specific intent need not be shown); In re Withrow, 93 B.R. 436, 439 (Bankr.W.D.N.C.1988) (noting that defendant’s election to operate through distant agents does not insulate defendant from willful stay violations). In this case, Bank’s liability in willfully violating the automatic stay has been established. Bank made no effort to refute credible evidence showing that Bank had knowledge of Debtor’s bankruptcy, that Bank’s agent harassed Debtor and his mother, that the agent repossessed the truck, and that the truck was not returned to Debtor until the day after the repossession, when Debtor’s attorney became involved. Only the issues regarding damages remain to be determined. Pursuant to the discussion below, I make the following conclusions with respect to the assessment of actual and punitive damages against Bank. A. Actual Damages Section 362(h) provides that an individual debtor injured by a willful violation of the stay “shall recover actual damages, including costs and attorney’s fees.” 11 U.S.C. § 362(h) (emphasis added). In this case, Debtor suffered actual damages in the forms of out-of-pocket expenses, attorney’s fees, and emotional distress. 1. Out-of-pocket expenses and attorney fees As a result of the repo agent’s violation of the stay, Debtor incurred reason able out-of-pocket expenses and attorney fees in the total amount of $1,306.84. That amount is compensable" }, { "docid": "8517908", "title": "", "text": "court to decide — i.e. whether a notice of hearing was properly sent to Patton and American General Finance. Since the clerk’s record clearly showed that a notice of hearing had been sent to American General Finance’s office on May 25 by prepaid first class mail, the bankruptcy court found that service had been properly made. Not only is this Court convinced that the bankruptcy court correctly decided this issue, the bankruptcy court’s finding cannot be deemed clearly erroneous since it was one of two permissible conclusions that could be drawn. See E.E.O.C. v. Sears, Roebuck & Co., 839 F.2d at 309 (a fact finder’s choice cannot be clearly erroneous where two permissible conclusions can be drawn). Were this not enough, the sole piece of evidence which Patton and American General Finance rely on to argue improper service is Patton’s affidavit. The affidavit is conclusory, self-serving, and wholly unsupported by the record. It would be insufficient to create a genuine issue of material fact on summary judgment. See Haywood v. North Am. Van Lines, Inc., 121 F.3d 1066, 1071 (7th Cir.1997) (stating that conclusory, self-serving affidavits which are wholly unsupported by the record cannot be used to defeat summary judgment). Likewise, it cannot be used to create a factual issue in a case such as this. Thus, Patton and American General Finance cannot establish improper service. II. Sanctions Section 362(h) provides that “[a]n individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorney’s fees, and, in appropriate circumstances, may recover punitive damages.” However, a debtor cannot succeed on a § 362(h) claim without alleging harassment or coercion. See Divane v. A & C Elec. Co., 193 B.R. 856, 859 (N.D.Ill.1996); In re Hazzard, 1995 WL 110588 at *2 (Bankr.N.D.Ill.1995) (holding that there exists “a need to find a ‘coercive or harassing’ element of some sort before § 362(h) applies.”) If a party willfully violates the automatic stay, an award under § 362(h) is mandatory, not discretionary. See Martino v. First Nat’l Bank of Harvey (In re Garofalo’s Finer Foods," }, { "docid": "15929728", "title": "", "text": "violation, the standard for awarding damages through the application of § 362(h) will be applied. An award of damages is mandatory under § 362(h) when a violation of the automatic stay is found to be “willful.” In re Johnson, 253 B.R. 857, 861 (Bankr.S.D.Ohio 2000). As used in § 362(h), “willful,” unlike many other contexts, does not require any specific intent. Fleet Mortgage Group, Inc. v. Kaneb, 196 F.3d 265, 269 (1st Cir.1999). Rather, for purposes of § 362(h), “willful” has simply been interpreted to mean any intentional and deliberate act undertaken with knowledge— whether obtained through formal notice or otherwise — of the pending bankruptcy. In re Kortz, 283 B.R. 706, 712 (Bankr.N.D.Ohio 2002); Patton v. Shade, 263 B.R. 861, 866 (C.D.Ill.2001). Within this definition, such “willful” conduct is unarguably present here; by communicating false information to the Debtor’s insurance company, Fifth Third Bank can be said to have deliberately and intentionally, albeit not necessary with malice, caused a notice of insurance cancellation to be issued to the Debtor. And, by its participation in her plan of reorganization, Fifth Third Bank must be deemed to have had both notice and knowledge of the Debtor’s pending bankruptcy. Under § 362(h), however, mandatory damages for a “willful” violation of the automatic stay are limited to “actual damages, including costs and attorneys’ fees ...” Based upon the representations of Debtor’s counsel, which this Court accepts as accurate, such damages in this case are confined solely to attorney fees; here, 2 hours at $175.00 per hour for a total of $350.00. Still, as applied to § 362(h), the possible imposition of punitive damages cannot be overlooked as this provision goes on to provide that “in appropriate circumstances, [a debtor] may recover punitive damages.” In re Baggs, 283 B.R. 726, 729 (Bankr.C.D.Ill.2002). For purposes of § 362(h), an award of punitive damages is not conditioned upon the existence of a finding of any actual damages. Id. All the same, the imposition of punitive damage is not an action to be taken lightly, and in this regard, this Court has always exercised great restraint in" }, { "docid": "15579484", "title": "", "text": "of the defendant. There is a split of authority on this issue. The eases holding that a trustee is an “individual” generally have concluded that a broader definition of the term, encompassing a trustee, more accurately carries out the purpose of the Bankruptcy Code. See, e.g., Martino v. First National Bank of Harvey (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414, 439 (N.D.Ill.1995). Conversely, the cases holding that a trustee is not an “individual” for purposes of former section 362(h) generally have concluded that the plain meaning of the term “individual” precludes the definition from encompassing a trustee, estate, corporation, partnership, or any artificial entity. See, e.g., Havelock v. Taxel (In re Pace), 67 F.3d 187, 193 (9th Cir.1995). Even opinions from within this district disagree on whether a trustee is an “individual” within the meaning of former section 362(h). In In re Material Corp., Inc., 206 B.R. 933, 938 (Bankr.N.D.Ill.1996), Judge Katz held that the term “individual” applies only to human debtors. Likewise, in Martino v. First Nat’l Bank in Harvey (In re Garofalo’s Finer Foods, Inc.), 164 B.R. 955, 972-73 (Bankr.N.D.Ill.1994) aff'd in part and rev’d in part, 186 B.R. 414 (N.D.Ill.1995), Judge Squires held that a trustee who brought suit as the representative of the estate was not entitled to damages under former section 362(h). The district court reversed the decision by Judge Squires on this issue stating that, “applying the more narrow, common usage definition of ‘individual’ to determine whether a chapter 7 bankruptcy trustee ... may recover damages under section 362(h) will produce a result demonstrably at odds with Congress’ presumed intent.” Garofalo, 186 B.R. at 439 (N.D.Ill.1995). Most recently, in Paloian v. Grupo Serla S.A. (In re GGSI Liquidation, Inc.), 351 B.R. 529, 583-84 (Bankr.N.D.Ill.2006), Judge Schmetterer followed the view of the district court in Garofalo and held that a trustee is an “individual” for purposes of former section 362(h). After reviewing the cited cases, this court was strongly inclined to agree with those opinions which held that a trustee is not an “individual injured by” a violation of the automatic stay for" }, { "docid": "11204181", "title": "", "text": "bearing in mind that Kouba finds the property interest to be a significant one, the court concludes that Lewis is inapposite here. The court having previously determined that FMCC’s interest in plaintiffs vehicle is adequately protected, plaintiffs motion for turnover is granted. (2) Question Whether FMCC Violated the Automatic Stay Any action taken by a creditor for the purpose of collecting a prepetition debt violates the automatic stay if it amounts to pressure on the debtor to pay. Divane v. A and C Electric Co., Inc., 193 B.R. 856, 859 (N.D.Ill.), appeal dismissed, 105 F.3d 660 (7th Cir.1996). Under § 362(h), “[a]n individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” 11 U.S.C. § 362(h). If it is determined that a party has willfully violated the automatic stay, the award under § 362(h) is mandatory, rather than discretionary. Martino v. First Nat’l Bank of Harvey (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414, 437 (N.D.Ill.1995). Plaintiff takes the position that in refusing to turn over the vehicle upon her attorney’s request, FMCC violated the prohibition under § 362(a)(3) of “any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.” She does not contend that FMCC took steps to sell the vehicle after she filed her Chapter 13 petition. Thus, the alleged violation of the stay would consist of inaction, rather than the kind of affirmative action that a claim under § 362(h) commonly calls to mind. There are two lines of authority on the question whether a creditor violates the stay by refusing to turn over a debtor’s vehicle that it has repossessed prior to the filing of a petition in bankruptcy. As discussed in the paragraphs that follow, the critical question is whether turnover can be ordered before findings as to adequate protection are made. A number of courts have determined that upon a debtor’s informal request for return of its vehicle," }, { "docid": "10577327", "title": "", "text": "emergency consideration is always available.' 11 U.S.C. § 362(e). Moreover, since CCC filed its motion for relief from stay almost three months after it filed its state case against plaintiff, this Court finds that fear of losing its state rights was not the motivating factor for CCC’s failure to seek relief from stay. Instead, based on all the evidence, this Court finds that counsel for CCC and its representatives willfully intended to violate the bankruptcy stay and acted in bad faith. In his testimony, Diamond, counsel for CCC, specifically testified that he considered the implications of the automatic stay and filed his state petition anyway. X. DAMAGES Plaintiff sues under 11 U.S.C. § 362(h) which states: “An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” Section 362(h) creates a private right of action for a debtor injured by a willful violation of the stay. Pettitt v. Baker, 876 F.2d 456 (5th Cir.1989). Under section 362(h), a plaintiff must prove: (1) defendant had notice of the bankruptcy; (2) defendant took actions in violation of the stay; (3) defendant’s actions were willful in order to obtain compensatory damages and costs; and (4) defendant’s actions were in bad faith in order to obtain punitive damages. Knowledge of the bankruptcy is considered knowledge that there is an automatic stay in effect. In re Lile, 103 B.R. 830, 837 (Bankr.S.D.Tex.1989), aff'd, 161 B.R. 788 (S.D.Tex.1993), aff'd in part, 43 F.3d 668 (5th Cir.1994). Proof of willful intent by the defendant shall entitle plaintiff to compensatory damages and costs including reasonable attorney’s fees. Willfulness is defined as a “deliberate act.” In re Crysen/Montenay Energy Co., 902 F.2d 1098, 1104-5 (2d Cir.1990). Specific intent to violate the stay is not necessary to liability under section 362(h). In re Bloom, 875 F.2d 224, 227 (9th Cir.1989) (Creditor’s motion to withdraw the reference violated the stay). Damages are appropriate where defendant knew of the stay and the actions violating the stay were intentional. Id., c.f. Mewes v.." }, { "docid": "171483", "title": "", "text": "B.R. 317, 321 n. 2 (8th Cir. BAP 1999) (court matters requiring judicial action as opposed to routine clerical entries are not “ministerial” in character). In sum, Ford violated the automatic stay by removing the state court action to the bankruptcy court without first seeking and obtaining a lift of the stay. Section 362(h) of the Bankruptcy Code provides that “[a]n individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” 11 U.S.C. § 362(h). In Adams v. Hartconn Assocs., Inc. (In re Adams), 212 B.R. 703, 708 (Bankr.D.Mass.1997), the bankruptcy court enunciated the three elements that must be established before a court will award damages for a violation of the automatic stay: “(1) the violation must have occurred, (2) the violation must have been committed willfully, and (3) the violation must have injured the individual seeking damages.” In Honeycutt v. Rickman (In re Honeycutt), 198 B.R. 306, 311 (Bankr.E.D.Ark.1996), the bankruptcy court advised: In order for damages to be imposed, the Rickmans’ violation of the stay must be “wilful,” 11 U.S.C. § 362(h), ie., that he deliberately violated the stay, as opposed to taking accidental or inadvertent action. See Hubbard v. Fleet Mortgage Co., 810 F.2d 778, 781 (8th Cir.1987). If deliberate action against the debtor or the estate was taken with knowledge of the stay, the violation of the automatic stay is wilful. In re NWFX, Inc., 81 B.R. 500 (Bankr.W.D.Ark.1987). Further, a violation may be wilful even if the actor believes himself justified or if there was no specific intent to violate the stay. In re Garofalo’s Finer Foods, Inc., 164 B.R. 955 (Bankr.N.D.Ill.1994), aff'd on stay issue and rev’d on other grounds, 186 B.R. 414 (N.D.Ill.1995). Here, even though Ford did not intend to violate the stay, Ford had knowledge of the bankruptcy filing and did willfully violate the automatic stay by removing the state court action to federal court without first obtaining a lift of the stay. However, the Court finds that the Hoskins have" }, { "docid": "8517910", "title": "", "text": "Inc.), 186 B.R. 414, 437 (N.D.Ill.1995). Under § 362(h), “willfulness” requires knowledge that a bankruptcy petition has been filed — whether through formal notice or otherwise. See In re Fridge, 239 B.R. 182, 190 (Bankr.N.D.Ill.1999) (citing Price v. Rockhford, 947 F.2d 829 (7th Cir.1991)). Specific intent to violate the automatic stay need not be found. See In re Bloom, 875 F.2d 224, 227 (9th Cir.1989). Damages are appropriately awarded under § 362(h) so long as the bankruptcy court finds that the defendant knew of the automatic stay and that the defendant’s actions were intentional. See In re Boldman, 157 B.R. 412, 414 (C.D.Ill.1993). Here, the Bankruptcy Judge awarded Shade $1000 in compensatory damages, $9000 in punitive damages, and $500 in attorney’s fees. The compensatory damages appear to based solely on emotional distress. The majority of courts which have considered claims for emotional distress under § 362(h) have denied them “where there is no medical or other hard evidence to show something more than a fleeting or inconsequential injury.” See In re Aiello, 231 B.R. 684, 690 (1999) (citing In re McHenry, 179 B.R. 165 (9th Cir. BAP 1995); In re Diviney, 211 B.R. 951 (Bankr.N.D.Okla.1997); In re Washington, 172 B.R. 415 (Bankr.S.D.Ga.1994); In re Crispell, 73 B.R. 375 (Bankr.E.D.Mo.1987); In re Demp, 23 B.R. 239, 240 (Bankr.E.D.Pa.1982); In re Cusanno, 17 B.R. 879 (Bankr.E.D.Pa.1982)). Based on these cases, emotional distress cannot serve as a basis for awarding compensatory damages unless there is “some medical or other corroborating evidence to support the debtor’s claim which shows that the debtor suffered something more than just fleeting and inconsequential distress, embarrassment, humiliation and annoyance.” See In re Aiello, 231 B.R. at 691. In In re Aiello, a debtor had already filed for Chapter 7 bankruptcy protection when a creditor mailed a letter to her home seeking repayment of credit card debt. The letter clearly violated the automatic stay when it accused the debtor of trying to fraudulently discharge her debt. Receipt of the letter led the debtor to cry, experience nausea and fright, quarrel with her husband and avoid answering the phone for" }, { "docid": "8517909", "title": "", "text": "121 F.3d 1066, 1071 (7th Cir.1997) (stating that conclusory, self-serving affidavits which are wholly unsupported by the record cannot be used to defeat summary judgment). Likewise, it cannot be used to create a factual issue in a case such as this. Thus, Patton and American General Finance cannot establish improper service. II. Sanctions Section 362(h) provides that “[a]n individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorney’s fees, and, in appropriate circumstances, may recover punitive damages.” However, a debtor cannot succeed on a § 362(h) claim without alleging harassment or coercion. See Divane v. A & C Elec. Co., 193 B.R. 856, 859 (N.D.Ill.1996); In re Hazzard, 1995 WL 110588 at *2 (Bankr.N.D.Ill.1995) (holding that there exists “a need to find a ‘coercive or harassing’ element of some sort before § 362(h) applies.”) If a party willfully violates the automatic stay, an award under § 362(h) is mandatory, not discretionary. See Martino v. First Nat’l Bank of Harvey (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414, 437 (N.D.Ill.1995). Under § 362(h), “willfulness” requires knowledge that a bankruptcy petition has been filed — whether through formal notice or otherwise. See In re Fridge, 239 B.R. 182, 190 (Bankr.N.D.Ill.1999) (citing Price v. Rockhford, 947 F.2d 829 (7th Cir.1991)). Specific intent to violate the automatic stay need not be found. See In re Bloom, 875 F.2d 224, 227 (9th Cir.1989). Damages are appropriately awarded under § 362(h) so long as the bankruptcy court finds that the defendant knew of the automatic stay and that the defendant’s actions were intentional. See In re Boldman, 157 B.R. 412, 414 (C.D.Ill.1993). Here, the Bankruptcy Judge awarded Shade $1000 in compensatory damages, $9000 in punitive damages, and $500 in attorney’s fees. The compensatory damages appear to based solely on emotional distress. The majority of courts which have considered claims for emotional distress under § 362(h) have denied them “where there is no medical or other hard evidence to show something more than a fleeting or inconsequential injury.” See In re Aiello, 231 B.R. 684," }, { "docid": "6258060", "title": "", "text": "willful if the creditor deliberately carried out the prohibited act with knowledge of the debtor’s bankruptcy case. Matthews v. United States (In re Matthews), 184 B.R. 594, 599 (Bankr.S.D.Ala.1995); In re Timbs, 178 B.R. 989, 997 (Bankr.E.D.Tenn. 1994); Hudson v. United States (In re Hudson), 168 B.R. 449, 453 (Bankr.S.D.Ga.1994); Temlock v. Falls Bldg., Ltd. (In re Falls Bldg., Ltd.), 94 B.R. 471, 481-82 (Bankr.E.D.Tenn.1988). Culpable parties can be sanctioned for willful violations of the automatic stay under 11 U.S.C.A. § 362(h) (West 1993), which provides as follows: An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages. Under this section, a Chapter 7 trustee can recover actual damages sustained by the bankruptcy estate resulting from willful violations of the stay. Martino v. First Nat’l Bank (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414, 439 (N.D.Ill.1995). The trustee’s attorney fees attributable to the § 362 issue constitute one form of such damages. Id. In addition, punitive damages are appropriate where there has been an arrogant defiance of federal law on the part of the culpable party. Timbs, 178 B.R. at 999. This court has previously noted that: “[P]unitive damages are awarded in response to particularly egregious conduct for both punitive and deterrent purposes. Such awards are ‘reserved ... for cases in which the defendant’s conduct amounts to something more than a bare violation justifying compensatory damages or injunctive relief.’ To recover punitive damages, the defendant must have acted with actual knowledge that he was violating the federally protected right or with reckless disregard of whether he was doing so.” Temlock, 94 B.R. at 482 (quoting In re Wagner, 74 B.R. 898, 903-04 (Bankr.E.D.Pa.1987) (quoting Cochetti v. Desmond, 572 F.2d 102, 106 (3rd Cir.1978))). The determination of whether a willful violation of the stay constitutes such defiance is left to the discretion of the bankruptcy court. Timbs, 178 B.R. at 997. The evidence before the court clearly establishes that the Defendant had knowledge of the Debtors’ bankruptcy case on" }, { "docid": "1273979", "title": "", "text": "full knowledge of all the material facts and takes some action to affirm the agent’s actions. See Hardin, Rodriguez & Boivin Anesthesiologists, Ltd. v. Paradigm Ins. Co., 962 F.2d 628, 634 (7th Cir.1992). The Court finds that the Village employees were acting as agents of the Creditors. By paying the Village to remove and store the Debtor’s personalty, the Creditors gave the Village apparent authority to act on their behalf. Further in making the payment to the Village, the Creditors ratified the Village employees’ acts. Next, the Court must determine if the violation of the automatic stay was willful. Section 362(h) provides: (h) An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages. 11 U.S.C. § 362(h). The Debtor is clearly an individual for purposes of section 362(h), and has standing to invoke a claim for his damages and attorney’s fees. See, e.g., In re Prairie Trunk Railway, 112 B.R. 924 (Bankr.N.D.Ill.1990); In re Prairie Trunk Railway, 125 B.R. 217 (Bankr.N.D.Ill.1991), aff'd, Consolidated Rail Corp. v. Gallatin State Bank, slip op., 1992 WL 611175 (N.D.Ill. May 15, 1992). A willful violation of the stay does not require that the creditor had the specific intent to violate the stay. In re Bloom, 875 F.2d 224, 227 (9th Cir.1989). When a creditor engages in conduct which violates the automatic stay, with knowledge that a bankruptcy petition had been filed, it can be considered a willful violation of the stay subjecting the creditor to liability for damages under section 362(h). In re Roete, 936 F.2d 963, 965 (7th Cir.1991). A violation is willful even if the creditor believed himself justified in taking the actions found violative of the stay. Taborski v. United States, 141 B.R. 959, 969 (N.D.Ill.1992); In re Alberto, 119 B.R. 985, 993 (Bankr.N.D.Ill.1990). The Court finds that the Creditors acted willfully by continuing to effect the removal of personal property of the Debtor from the front yard of the Real Property utilizing the Village off-duty employees who subsequently removed" }, { "docid": "11204180", "title": "", "text": "by virtue of § 541(a)(1). Id. at 207, 103 S.Ct. 2309 at n. 15. Because § 542(a) grants a trustee or debtor in possession greater rights than those held by the debtor on the date of its petition, though, the seized property in its entirety may be recovered as part of the bankruptcy estate. See id., 462 U.S. at 208-09, 103 S.Ct. at 2315. Also, the Court explicitly referred to a creditor’s right of repossession under UCC § 9-503 in its discussion of the proposition that § 542(a) modifies the procedural rights available to creditors to protect and satisfy their liens. Id. 462 U.S. at 206 & n. 14, 103 S.Ct. at 2314 & n. 14. This court believes that the situation presented in this case falls squarely within Whiting Pools’ conclusion that until a sale is taken place, property seized prepetition pursuant to a creditor’s provisional remedy remains property of the estate, and as such, is subject to the turnover requirement of § 542(a). Id., 462 U.S. at 211, 103 S.Ct. at 2316-17. Also, bearing in mind that Kouba finds the property interest to be a significant one, the court concludes that Lewis is inapposite here. The court having previously determined that FMCC’s interest in plaintiffs vehicle is adequately protected, plaintiffs motion for turnover is granted. (2) Question Whether FMCC Violated the Automatic Stay Any action taken by a creditor for the purpose of collecting a prepetition debt violates the automatic stay if it amounts to pressure on the debtor to pay. Divane v. A and C Electric Co., Inc., 193 B.R. 856, 859 (N.D.Ill.), appeal dismissed, 105 F.3d 660 (7th Cir.1996). Under § 362(h), “[a]n individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” 11 U.S.C. § 362(h). If it is determined that a party has willfully violated the automatic stay, the award under § 362(h) is mandatory, rather than discretionary. Martino v. First Nat’l Bank of Harvey (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414," }, { "docid": "3932474", "title": "", "text": "920 F.2d 183, 184-86 (2d Cir.1990). Two circuits have held that “individual” is not narrowly limited but instead also includes corporate debtors. Cuffee v. Atl. Bus. & Cmty. Dev. Corp. (In re Atl. Bus. & Cmty. Corp.), 901 F.2d 325, 329 (3d Cir.1990); Budget Serv. Co. v. Better Homes of Va., Inc., 804 F.2d 289, 292 (4th Cir.1986). Courts within this circuit are similarly split, although the majority have held that a corporation is not an “individual” for purposes of § 362(h). Compare In re Midway Indus. Contractors, Inc., 178 B.R. 734, 737-38 (N.D.Ill.1995); Consolidated Rail Corp., 173 B.R. at 147; In re Glenn, 379 B.R. 760, 762-64 (Bankr.N.D.Ill.2007); In re Fashions USA Inc., 301 B.R. 528, 529 (Bankr.C.D.Ill. 2003); and In re Bequette, 184 B.R. 327, 335 (Bankr.S.D.Ill.1995) (corporation cannot recover damages under § 362(h)), with Martino v. First Nat’l Bank of Harvey (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414, 437-39 (N.D.Ill.1995), and In re A & C Elec. Co., 188 B.R. 975, 979 (Bankr.N.D.Ill.1995) (corporation can recover damages under § 362(h)). This court finds persuasive the reasoning of the cited cases holding that a corporation, or a trustee for a corporate debtor’s estate, cannot recover damages pursuant to § 362(h) for willful violation of the automatic stay. The Bankruptcy Code is to be construed in accordance with the plain meaning doctrine, where the plain language of the statute is conclusive “except in the rare cases in which the literal application of a statute will produce a result demonstrably at odds with the intention of its drafters.” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (citation omitted) (internal quotation marks omitted). Although “individual” is not explicitly defined in the Bankruptcy Code, to find that the term “individual” includes “corporation” requires a tortured reading. Other definitions in the Bankruptcy Code demonstrate that “individual” refers to a natural person, and not a corporation or a trustee acting in his representative capacity on behalf of the bankruptcy estate. For example, “person” is defined to include an “individual, partnership, and corporation.”" } ]

[ { "docid": "15221110", "title": "", "text": "machine. Instead, Terminal deposited it and the Bank applied the money to Terminal’s pre-existing indebtedness. This was the basis of the trustee’s fraudulent transfer claim. For recovery the trustee relied on section 67d(2)(d) of the Bankruptcy Act, 11 U.S.C. § 107(d)(2)(d) (repealed 1978), which provided in pertinent part: (2) Every transfer made and every obligation incurred by a debtor within one year prior to the filing of a petition initiating a proceeding under this title by or against him is fraudulent 5k sk * * sk sk (d) as to then existing and future creditors, if made or incurred with actual intent as distinguished from intent presumed in law, to hinder, delay, or defraud either existing or future creditors. II. The jury found that there was a fraudulent transfer and awarded the trustee $30,000. On appeal the Bank contends that the evidence was insufficient to sup port the finding of fraudulent transfer. It argues that the trustee failed to establish two essential attributes of fraudulent transfer — a diminution of the debtor’s assets available to creditors, and fraudulent intent on the part of the transferor. The Bank reasons that since it held a valid security interest on accounts receivable, the $30,000 down payment would not have been available to general creditors, and its appropriation to the Bank’s secured claim worked no depletion of Terminal’s assets. In support of its position the Bank relies on a respected text, 1 Glenn, Fraudulent Conveyances and Preferences, § 195 (rev’d ed. 1940). (“The test, we repeat, is whether, as a result of the debtor’s operations on the title to its property, the creditor loses by reason of finding less to seize and apply to his claim.”) The district court acknowledged this requirement by instructing the jury: “[A]ny money received by the bank from Terminal which constituted proceeds from an account receivable, may not be considered by you as a fraudulent transfer, even though such action by the bank resulted in Terminal’s inability to pay other creditors.” Nevertheless the district court also instructed the jury that it could find a fraudulent transfer if it concluded" } ]

[ { "docid": "18897653", "title": "", "text": "is not entitled to the remedy of setting aside [the debtor]’s conveyance ... as fraudulent ... [and] does not have an interest in the outcome of the appeal.” Id. at 466 (citation omitted). In this case, on the other hand, Acequia continues to pursue section 544(b) claims against Clinton and most assuredly has an “interest in the outcome of the appeal.” Unsecured Creditors’ Committee v. Banque Paribas (In re Heartland Chemicals, Inc.), 103 B.R. 1012 (Bankr.C.D.Ill.1989), is similarly inapplicable. In that case, the court applied state law to determine that creditors could not “avoid a transaction where the debt owed at the time the bankruptcy petition was filed is not identical to the debt owed at the time of the challenged transaction.” Id. at 1016. Clinton makes no such allegation in this case. We therefore hold that Acequia may invoke section 544(b) despite the fact that it paid unsecured creditors in its confirmed plan of reorganization. B. Although determining that Acequia could in fact utilize section 544(b), the magistrate judge imposed a novel limitation on the corporation’s recovery under the statute: In the normal situation, a debtor-in-possession is attempting to set aside fraudulent .transfers so that assets can be brought back into the estate so that unsecured creditors can hopefully receive some percentage of their claims. Under such circumstances case law has applied the broad language in Moore v. Bay [284 U.S. 4, 52 S.Ct. 3, 76 L.Ed. 133 (1931) ] (“for the benefit of the estate”) so that the class of unsecured creditors will benefit from any recovery equally even if the action is brought on behalf of only one unsecured creditor so that the entire class of unse cured creditors can benefit. Such recovery rarely pays unsecured creditors fully. In this case the circumstances are such that the unsecured creditors, in whose shoes Acequia stands, were paid in full on the distribution date. Therefore, this Court will limit Acequia’s standing, thus the right to recover for the benefit of the estate, to the amount of unsecured claims paid on the distribution date identified in the Plan of Reorganization...." }, { "docid": "18897667", "title": "", "text": "continued payments to Prudential pursuant to a long-term note. And, second, recovery would reimburse the bankruptcy estate for the costs of pursuing fraudulent conveyance litigation against Clinton. More importantly, a contrary determination would lead to the anomalous conclusion reached by the magistrate judge that Clinton engaged in fraudulent conduct by transferring Acequia’s funds with the actual intent to hinder and delay creditors, but that Acequia has no remedy for such conduct because it would not “benefit” from recovery of the funds. The magistrate judge was concerned about preventing a “windfall” to Acequia. We think, however, that requiring Clinton to disgorge wrongfully-transferred funds will merely make the bankruptcy estate whole. See Morris v. Kansas Drywall Supply Co. (In re Classic Drywall, Inc.), 127 B.R. 874, 876 (D.Kan.1991) (“Section 550(a) is intended to restore the estate to the financial condition it would have enjoyed if the transfer had not occurred.”); Pritchard v. Brown (In re Brown), 118 B.R. 57, 60 (Bankr.N.D.Tex.1990) (same). Moreover, even if the recovery did constitute a “windfall,” Acequia has a greater equitable claim to the transferred funds than does Clinton, the wrongdoer. We think it better to err on Acequia’s side: “One simple truth is evident — if plaintiff is not permitted to seek recovery of the alleged fraudulent conveyances, there will be absolutely no benefit to the unsecured creditors _ Defendants will receive a windfall.” Southern Indus., 59 B.R. at 643. We therefore hold that, on the unique facts of this case, Acequia’s section 544(b) fraudulent conveyance actions will “benefit the estate” within the meaning of section 550(a). C. In light of this conclusion, we must determine the transfers for which Clinton may be liable. As noted above, the magistrate judge applied section 544(b) and Idaho Code section 55-916 to hold that Acequia eould recover an additional $64,000 under Counts XIII and IX. We review for clear error the magistrate judge’s factual determination that Clinton intended to hinder or delay Acequia’s creditors, e.g., United States v. Bertie, 529 F.2d 506, 508 (9th Cir.1976) (“the question of fraudulent intent is one of fact, and not of law”) (applying" }, { "docid": "18897668", "title": "", "text": "to the transferred funds than does Clinton, the wrongdoer. We think it better to err on Acequia’s side: “One simple truth is evident — if plaintiff is not permitted to seek recovery of the alleged fraudulent conveyances, there will be absolutely no benefit to the unsecured creditors _ Defendants will receive a windfall.” Southern Indus., 59 B.R. at 643. We therefore hold that, on the unique facts of this case, Acequia’s section 544(b) fraudulent conveyance actions will “benefit the estate” within the meaning of section 550(a). C. In light of this conclusion, we must determine the transfers for which Clinton may be liable. As noted above, the magistrate judge applied section 544(b) and Idaho Code section 55-916 to hold that Acequia eould recover an additional $64,000 under Counts XIII and IX. We review for clear error the magistrate judge’s factual determination that Clinton intended to hinder or delay Acequia’s creditors, e.g., United States v. Bertie, 529 F.2d 506, 508 (9th Cir.1976) (“the question of fraudulent intent is one of fact, and not of law”) (applying Idaho law); Mohar v. McLelland Lumber Co., 95 Idaho 38, 42, 501 P.2d 722, 726 (1972) (“Whether a particular transaction was fraudulent is a question of fact to be determined from all the circumstances.”), and we affirm that holding. However, because the magistrate judge failed fully to consider Counts V through VII, we reverse and remand for analysis of the transfers at issue in those counts. 1. Analysis under Idaho Code section 55-916 is identical to analysis under section 548(a)(1), the Bankruptcy Code’s actual fraudulent transfer provision. See Bertie, 529 F.2d at 508 (“certain indices of fraud may warrant an inference of actual fraud”); Mohar, 501 P.2d at 726 (“when certain ‘badges of fraud’ attend the conveyance, and are not adequately explained, an inference of actual fraud may be warranted”); Chester B. Brown Co. v. Goff, 89 Idaho 170, 173, 403 P.2d 855, 858 (1965) (“when numerous badges of fraud exist the burden of explaining the transactions will be shifted to the party seeking to uphold the transactions”). The magistrate judge traced the transfers at" }, { "docid": "18897649", "title": "", "text": "that Acequia’s avoidance rights under section 544(b) derive from those of its unsecured creditors, the magistrate judge limited the corporation’s section 544(b) recovery to the total amount of unsecured claims against the bankruptcy estate. In total, the magistrate judge found Clinton liable for an additional $64,000 under this provision. Both parties appeal. A. Clinton argues that Acequia’s entire section 544(b) action is now moot because the corporation paid all unsecured creditors in its plan of reorganization and thereby nullified any foundation for application of the statute. In support, Clinton recites the axiomatic proposition that, “[i]n seeking recovery of [ ] monies [under section 544(b)], the trustee stands in the overshoes of the debtor corporation’s unsecured creditors,” Agricultural Research, 916 F.2d at 534. We reject Clinton’s argument for several reasons. First, the existence of a section 544(b) cause of action “depends upon whether ... a creditor existing at the time the transfers were made ... still had a viable claim against [the] debtor at the time the bankruptcy petition was filed. ” Karnes v. McDowell (In re McDowell), 87 B.R. 554, 558 (Bankr.S.D.Ill.1988) (emphasis added) (holding that a bankruptcy petition tolls the statute of limitations on a creditor’s state-law fraudulent conveyance action and permits the trustee to initiate avoidance litigation even where the limitations period otherwise would have expired). See generally Collier, supra pages 10015-16, ¶ 544.03[2] at 544-21 to 544-22. In this case, unsecured creditors clearly held claims against Acequia when it filed the bankruptcy petition. Second, section 1123(b) of the Bankruptcy Code authorizes postconfirmation pursuit of a debtor’s bankruptcy causes of action. See 11 U.S.C. § 1123(b)(3)(B) (“a plan may ... provide for ... the retention and enforcement by the debtor, by the trustee, or by a representative of the estate appointed for such purpose, of any ... claim or interest”); Citicorp Acceptance Co. v. Robison (In re Sweetwater), 884 F.2d 1323, 1327 (10th Cir.1989) (representative designated in a confirmed plan of reorganization may assert section 544(b) “as a claim of the estate for purposes of § 1123(b)(3)(B)”); In re Consolidated Capital Equities Corp., 143 B.R. 80, 85 (Bankr.N.D.Tex.1992)" }, { "docid": "18897647", "title": "", "text": "hinder, delay and defraud this debt- or’s creditors.”); Collier, supra pages 10015-16, ¶ 548.02[5] at 548-41 to 548-46 (“Circumstances from which courts have been willing to infer fraud include ... a transfer for no consideration where the transferor and the transferee have knowledge of the claims of creditors and know the creditors cannot be paid ... [and] the fact that the transferee was an officer or was an agent or creditor of an officer of an embarrassed corporate trans-feror. ...”) (collecting cases). The fact that Clinton never documented Acequia’s “loans” or “salary payments,” and filed bankruptcy schedules and tax returns that made no reference to these transfers, supports the magistrate judge’s determination that Clinton failed to rebut the circumstantial inference arising from the “badges of fraud.” Accordingly, we affirm the magistrate judge’s conclusion that Clinton received fraudulent transfers in violation of section 548(a)(1). III. Section 544 of the Bankruptcy Code empowers a bankruptcy trustee to invoke state law to recover the debtor’s prepetition transfers: The trustee may avoid any transfer of an interest of the debtor in property ... that is voidable under applicable law by a creditor holding an unsecured claim that is allowable under ... this title. 11 U.S.C. § 544(b). Because section 548(a)(1) applies only to transfers made within one year of a bankruptcy petition, the magistrate judge used section 544(b) to analyze Acequia’s conveyances to Clinton made more than one year prior to the corporation’s bankruptcy. See Wyle v. C.H. Rider & Family (In re United Energy Corp.), 944 F.2d 589, 593\" (9th Cir.1991) (using section 544(b) to apply state fraudulent conveyance law); Agricultural Research, 916 F.2d at 534 (same); Kwpetz, 845 F.2d at 845 (same). Specifically, the magistrate judge invoked section 544(b) to apply Idaho Code section 55-916, a state-law analog of section 548(a)(1): Conveyance made with intent to defraud— Every conveyance made ... with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors. Idaho Code § 55-916 (superseded in 1987 by § 55-913(l)(a)). However, reasoning" }, { "docid": "18897640", "title": "", "text": "actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made ..., indebted_ 11 U.S.C. § 548(a)(1) (emphasis added). Under section 548(a)(1), “[t]he transfer of any interest in the property of a debtor, within one year of the filing of a petition in bankruptcy, is voidable by the trustee in bankruptcy if the purpose of the transfer was to prevent creditors from obtaining satisfaction of their claims against the debtor by removing property from their reach.” Max Sugarman Funeral Home, Inc. v. A.D.B. Investors, 926 F.2d 1248, 1254 (1st Cir.1991). As a debtor-in-possession, Acequia invoked section 548 on its own behalf, alleging in Counts I through IV and parts of Count IX of its complaint that Clinton received fraudulent transfers within the scope of the statute. The magistrate judge analyzed the relevant transfers from Acequia to Clinton by tracing the funds “to determine if the money was used by Clinton for personal purposes, as alleged [by Acequia], or if the money was returned to Acequia [as claimed by Clinton].” Ultimately, the magistrate judge concluded that Acequia could recover $118,367.97 as fraudulently transferred within .the meaning of section 548(a)(1): The transfer the Court is concerned with is the transfer of Acequia funds to Clinton’s personal name. Such transfers could not help but hinder and delay payment to Acequia’s creditors[] a fact Clinton would certainly have been aware of as the Chief [OJperating [OJjficer of the corporation in charge of all books and records. By then Acequia had missed the two principal payments due to Prudential [a secured creditor] on March 15, 1979 and 1980. Clinton was negotiating a settlement with Prudential to fend off a foreclosure action. Other suits were pending involving KLW [another creditor] and its operation of [Clinton’s] ranch. The bankruptcy filing was imminent and[,] when filed[,] Clinton only listed cash from which Acequia could meet its debts in the amount of $2,000.00. Clinton has not attempted to explain the trans-ferís] other than that the funds were used for personal expenses. Therefore, Clinton will" }, { "docid": "18897670", "title": "", "text": "issue in Counts XIII and IX and concluded that Clinton could not account for $64,000. Clinton’s arguments against this conclusion take the same form as his arguments regarding liability under section 548(a)(1) and, for the same reasons, are incorrect. Specifically, the magistrate judge found sufficient indicia of fraud to shift “the burden of explaining the transactions” to Clinton, Chester B. Brown, 89 Idaho at 173, 403 P.2d at 858, and determined that Clinton failed to meet that burden: By the time these transfers occurred, Clinton was separated from Haley and was involved in a contested divorce action. Acequia had made interest payments on the Prudential loan for 1978, 1979, and 1980 but had failed to make the principal payments due on March 15,1979 and 1980. Several lawsuits were pending. There was no basis for Clinton to conclude that Aceq-uia owed him money pursuant to the much •discussed shareholder loan account because by this time even Clinton’s own accounting, as evidenced by the tax returns prepared by Clinton’s accountant, ... show that Clinton owed Acequia. Because this finding is not clearly erroneous, we affirm the magistrate judge’s conclusion that Acequia may avoid, pursuant to section 544(b), $64,000 of transfers under Counts XIII and IX. 2. After determining that a “cap” on Aceq-uia’s section 544(b) recovery was appropriate, the magistrate judge initially refused to analyze Counts V through XIII: “Since Acequia will be limited to recovering only the funds actually paid to unsecured creditors and further finding that the sum would probably not exceed $100,000, the Court will only analyze [Counts IX and X].” On reconsideration,after shifting Acequia’s Count X recovery to a restitution theory and thereby making additional room under the section 544(b) “cap,” the magistrate judge also analyzed Count XIII. At the same time, the magistrate judge purported to examine Counts V through VII: “As to Counts V through VII the Court finds that the transfers at issue to Clinton were not made with the intent to hinder or delay creditors. As stated on several prior occasions, the Court does not believe that during the formative years of the corporation," }, { "docid": "18897685", "title": "", "text": "judgment for monies owed to Clinton by [Acequia] because Clinton ... received no salary from [Acequia] for services rendered to [Acequia]. Clinton is also entitled to set-off for monies allegedly owed because [Acequia] has retained payments made on the Desert Land Entry [“DLE”] Property. The magistrate judge disagreed, concluding that Clinton was not entitled to any setoff claims: “Mutuality of obligations is not met where the claimed set-off is based on fraudulent actions. As far as any funds that the Court has found were transferred to Clinton with the intent to hinder or delay creditors, there would be no set-off.” Nevertheless, the magistrate judge concluded that Clinton and Acequia had reached an agreement regarding rental of the DLE property after confirmation and, accordingly, the magistrate judge entered judgment for Clinton in the amount of rent due from the date of confirmation: “The Court sees this claim, not as one regarding a set-off, but for money due on a post-confirmation agreement between Acequia and Clinton. Acequia is leasing the land [from] Clinton and Haley and therefore owes them the fair rental value.” We affirm the magistrate judge’s determination to deny the setoff claims but reverse the decision to award Clinton affirmative relief on the rent'claim. A. Section 553 of the Bankruptcy Code provides that a creditor may “offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case ... against a claim of the debtor that arose before the commencement of the case.” 11 U.S.C. § 553(a). As the magistrate judge recognized, “[a] fraudulent conveyance cannot be offset against or exchanged for a general unsecured claim.” United Energy, 944 F.2d at 589. “Section 553(a) setoffs ... do not apply to actions by the Trustee to recover fraudulent transfers: ‘It would defeat the purpose of the Bankruptcy Act’s provisions relating to fraudulent transfers to allow [creditors] to offset the value of the property thus transferred to them by the amount of their unsecured claim against [the debtor].’” Bustamante v. Johnson (In re McConnell), 934 F.2d 662, 667 (5th Cir.1991) (quoting Mack v. Newton, 737" }, { "docid": "18897637", "title": "", "text": "CYNTHIA HOLCOMB HALL, Circuit Judge: In this case, we consider issues arising from chapter 11 debtor Acequia, Inc.’s ten-year effort to recover certain prebankruptcy conveyances made to Vernon Clinton, founder and former controlling shareholder of the corporation. Clinton appeals the magistrate judge’s determination that he fraudulently transferred Acequia’s assets to himself. Acequia, now under the control of adverse parties, cross-appeals the magistrate judge’s calculation of Clinton’s liability for the transfers. Resolution of the multitude of issues in this ease requires consideration of the common law of restitution, Idaho’s community-property law, the equitable doctrine of setoff, and, most importantly, the fraudulent conveyance provisions of both the Bankruptcy and Idaho Codes. We scrutinize each doctrine and, ultimately, conclude the magistrate judge correctly determined that Clinton made transfers with an actual intent to hinder and delay Acequia’s creditors. We hold, however, that the magistrate judge erred by limiting Acequia’s recovery of the fraudulent transfers to the amount of unsecured claims against the bankruptcy estate. Accordingly, we affirm in part, reverse in part, and remand. I. In 1974, while married to Rosemary Haley, Vernon Clinton formed Acequia, Inc., a Sub-chapter S family corporation, to conduct farming and management operations on his land in Idaho. In 1981, Clinton and Haley divorced and, pursuant to a marital settlement agreement, each took fifty-percent ownership of the corporation. Acequia filed a petition under chapter 11 of the Bankruptcy Code the following year. Shortly thereafter, Haley and several creditors requested the bankruptcy court to appoint a trustee, alleging that Clinton had failed to disclose material information in Acequia’s bankruptcy schedules and had engaged in blatant mismanagement. In response, Clinton eventually gave an irrevocable voting proxy to Haley, who took control of the corporation. In 1984, Acequia confirmed a plan of reorganization over Clinton’s objection. Both the district court and the Ninth Circuit subsequently affirmed. See Acequia, Inc. v. Clinton (In re Acequia, Inc.), 787 F.2d 1352 (9th Cir.1986) [Acequia I]; see also Clinton v. Acequia, Inc. (In re Acequia, Inc.), No. 91-36176, 996 F.2d 1223 (9th Cir. June 21,1993) (mem.) (affirming the bankruptcy court’s denial of Clinton’s motion to" }, { "docid": "18897693", "title": "", "text": "fraudulent transfers at issue in Counts I through IV and IX; (2) held Clinton liable under a restitution theory for the transfers at issue in Count X; (3) determined that Haley is not liable for the transfers at issue in Counts I through IX and XIII through XI; (4) denied Clinton’s setoff claims; (5) awarded prejudgment interest; and (6) denied Acequia’s request for attorney’s fees. However, we conclude that the magistrate judge (1) incorrectly imposed a “cap” on Acequia’s claims under section 544(b) and therefore erred by failing to analyze Counts V through VII; (2) erroneously failed to consider Haley’s liability for Counts V through VII; and (3) incorrectly transformed Clinton’s setoff defense into affirmative recovery on the DLE rent claim. We therefore affirm in part, reverse in part, and remand for analysis under section 544(b) of Counts V through VII of Acequia’s complaint. The parties shall bear their own costs on appeal. AFFIRMED in part. REVERSED in part. REMANDED. . Section .1107(a) of the Bankruptcy Code empowers a debtor-in-possession to use the trustee's statutory authority to recover fraudulent transfers. See 11 U.S.C. § 1107(a); Besing v. Hawthorne (In re Besing), 981 F.2d 1488, 1491 n. 5 (5th Cir.), cert. denied, - U.S. -, 114 S.Ct. 79, 126 L.Ed.2d 47 (1993); Verco Indus, v. Spartan Plastics (In re Verco Indus.), 704 F.2d 1134, 1137 (9th Cir.1983). . Clinton argues that he cannot be liable for fraudulent conveyances because the transfers did not prejudice Acequia's creditors. Aside from being factually questionable (the magistrate judge concluded that \"[t]here is no question that the withdrawals occurred and that creditors] (both secured and unsecured), ... were harmed_”), Clinton's contention is legally in correct: \"A party to a transaction calculated to defraud creditors cannot seriously contend that the property is worthless to creditors seeking recovery, or that the transfer has not otherwise injured them.” Collier, supra pages 10015-16, ¶ 548.02[4] at 548-38 to 548-39 (collecting cases). The magistrate judge found intent to hinder or delay creditors; actual hindrance or delay is unnecessary to attach liability. The case Clinton cites for support, Melamed v. Lake County" }, { "docid": "18897648", "title": "", "text": "debtor in property ... that is voidable under applicable law by a creditor holding an unsecured claim that is allowable under ... this title. 11 U.S.C. § 544(b). Because section 548(a)(1) applies only to transfers made within one year of a bankruptcy petition, the magistrate judge used section 544(b) to analyze Acequia’s conveyances to Clinton made more than one year prior to the corporation’s bankruptcy. See Wyle v. C.H. Rider & Family (In re United Energy Corp.), 944 F.2d 589, 593\" (9th Cir.1991) (using section 544(b) to apply state fraudulent conveyance law); Agricultural Research, 916 F.2d at 534 (same); Kwpetz, 845 F.2d at 845 (same). Specifically, the magistrate judge invoked section 544(b) to apply Idaho Code section 55-916, a state-law analog of section 548(a)(1): Conveyance made with intent to defraud— Every conveyance made ... with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors. Idaho Code § 55-916 (superseded in 1987 by § 55-913(l)(a)). However, reasoning that Acequia’s avoidance rights under section 544(b) derive from those of its unsecured creditors, the magistrate judge limited the corporation’s section 544(b) recovery to the total amount of unsecured claims against the bankruptcy estate. In total, the magistrate judge found Clinton liable for an additional $64,000 under this provision. Both parties appeal. A. Clinton argues that Acequia’s entire section 544(b) action is now moot because the corporation paid all unsecured creditors in its plan of reorganization and thereby nullified any foundation for application of the statute. In support, Clinton recites the axiomatic proposition that, “[i]n seeking recovery of [ ] monies [under section 544(b)], the trustee stands in the overshoes of the debtor corporation’s unsecured creditors,” Agricultural Research, 916 F.2d at 534. We reject Clinton’s argument for several reasons. First, the existence of a section 544(b) cause of action “depends upon whether ... a creditor existing at the time the transfers were made ... still had a viable claim against [the] debtor at the time the bankruptcy petition was filed. ” Karnes v. McDowell (In" }, { "docid": "18897695", "title": "", "text": "Nat'l Bank, 727 F.2d 1399 (6th Cir.1984), is inapposite. In Melamed, the court merely held that fraudulent conveyance liability does not exist where a creditor obtains payment of its secured claim because such payment \"does not diminish the assets of the debtor which [a]re available to its creditors.” Id. at 1402. In this case, on the other hand, Acequia's transfers to Clinton clearly depleted the corporation's assets and thereby lessened funds available to the unsecured creditors. . This conclusion applies with equal force to the transfers at issue in Count X (with which Clinton paid his attorneys) to the extent those conveyances were fraudulent. In any event, \"the rule that pre-divorce attorney fees must be treated as community debts ... has been statutorily set aside ..Jensen v. Jensen, 124 Idaho 162, 170, 857 P.2d 641, 649 (1993), and, as a result, the magistrate judge's determination that the Count X transfers did not benefit the marital community is not clearly erroneous. . \"[S]tate law regarding prejudgment interest is applicable via 11 U.S.C. § 544(b).” Agricultural Research, 916 F.2d at 541. GOODWIN, Circuit Judge, dissenting: The majority finds that the bankruptcy court did not clearly err in holding that Vernon Clinton acted “with actual intent to hinder, delay, or defraud” Acequia’s creditors. See 11 U.S.C. § 548(a)(1). I disagree. The bankruptcy court’s finding that the “transfer of Acequia funds to Clinton’s personal name ... could not help but hinder and delay payment to Acequia’s creditors[,] a fact Clinton would certainly have been aware of’ is not supported by the evidence. All of Aeequia’s creditors were paid in full, and any delay in payment was caused by the bankruptcy court proceedings initiated by Aceq-uia, at that time no longer controlled by Clinton. A finding that creditors were injured is not always necessary to a determination that a debtor acted with actual intent to hinder, delay, or defraud them. See, e.g., First Beverly Bank v. Adeeb (In re Adeeb), 787 F.2d 1339, 1343 (9th Cir.1986). However, we should not rely upon a judicial doctrine to construct an intent to defraud where no actual intent" }, { "docid": "18897642", "title": "", "text": "be required to return the funds to Acequia as the transferís] hindered and delayed Acequia creditors. (emphasis added). On Clinton’s motion for reconsideration, the magistrate judge clarified his analysis: ... The Court agrees with Clinton that[,] if the sole indicia of fraud was that Clinton personally used the funds[,] that Acequia did not meet its burden of proof. However, the Court found and sets forth more clearly at this point, that Acequia presented evidence that by the beginning of 1981 numerous badges of fraud existed which shifted the burden of proof to Clinton to explain or uphold the transfer. It was Clinton’s sole explanation that the funds were used for personal expenses that [led] this Court to find that Clinton had not met his burden of proof to explain the transfer. (emphasis added) (citation and footnotes omitted). A. We review for clear error the magistrate judge’s factual determination that Clinton intended to hinder and delay Acequia’s creditors. E.g., Harman v. First Am. Bank (In re Jeffrey Bigelow Design Group, Inc.), 956 F.2d 479, 481 (4th Cir.1992) (“For a finding of fraudulent intent in an actual fraudulent transfer, a reviewing court must apply a clearly erroneous standard.”); Gough v. Titus (In re Christian & Porter Aluminum Co.), 584 F.2d 326, 335 (9th Cir.1978); 4 Collier on Bankruptcy ¶ 548.02[5] at 548-49 n. 62 (15th ed. 1994) (“A finding of a trial judge, ... who has heard the oral testimony that a transfer has or has not been effected with actual fraudulent intent, is undoubtedly entitled to great weight on appeal in view of the peculiar importance in section 548(a)(1) cases of the witness examined on the intent issue.”) [Collier], Applying this deferential standard of review, we affirm the magistrate judge’s holding that Clinton is liable for fraudulent transfers in violation of section 548(a)(1). B. Clinton argues that, instead of intending to defraud Acequia’s creditors, he considered the corporate conveyances to be personal loans or, alternatively, reimbursement for living expenses in lieu of salary. Uniquely, Clinton grounds this contention in his complete failure to observe corporate formalities and his consistent treatment of" }, { "docid": "18897671", "title": "", "text": "this finding is not clearly erroneous, we affirm the magistrate judge’s conclusion that Acequia may avoid, pursuant to section 544(b), $64,000 of transfers under Counts XIII and IX. 2. After determining that a “cap” on Aceq-uia’s section 544(b) recovery was appropriate, the magistrate judge initially refused to analyze Counts V through XIII: “Since Acequia will be limited to recovering only the funds actually paid to unsecured creditors and further finding that the sum would probably not exceed $100,000, the Court will only analyze [Counts IX and X].” On reconsideration,after shifting Acequia’s Count X recovery to a restitution theory and thereby making additional room under the section 544(b) “cap,” the magistrate judge also analyzed Count XIII. At the same time, the magistrate judge purported to examine Counts V through VII: “As to Counts V through VII the Court finds that the transfers at issue to Clinton were not made with the intent to hinder or delay creditors. As stated on several prior occasions, the Court does not believe that during the formative years of the corporation, Clinton made any of these transfers with the intent to hinder or delay creditors.” A review of the record, however, reveals no evidence of the “several prior occasions” to which the magistrate judge referred. Unlike his analysis for other counts, the magistrate judge made no attempt to trace or otherwise account for the funds at issue in Counts V through VII. Rather, the magistrate judge simply declined to consider the transactions at issue in those counts, even after finding additional room under the section 544(b) “cap.” Because several badges of fraud appear to exist for those transactions, we think the magistrate judge should at least have explained why he concluded that Clinton did not intend to hinder or delay creditors by making the transfers. As a result, we remand the case for the magistrate judge to consider Acequia’s section 544(b) claims in Counts V through VII. IV. In addition to pursuing bankruptcy causes of action, Acequia sought to recover the transfers at issue in Counts V through XI on the alternative theory of common-law restitution." }, { "docid": "18897694", "title": "", "text": "authority to recover fraudulent transfers. See 11 U.S.C. § 1107(a); Besing v. Hawthorne (In re Besing), 981 F.2d 1488, 1491 n. 5 (5th Cir.), cert. denied, - U.S. -, 114 S.Ct. 79, 126 L.Ed.2d 47 (1993); Verco Indus, v. Spartan Plastics (In re Verco Indus.), 704 F.2d 1134, 1137 (9th Cir.1983). . Clinton argues that he cannot be liable for fraudulent conveyances because the transfers did not prejudice Acequia's creditors. Aside from being factually questionable (the magistrate judge concluded that \"[t]here is no question that the withdrawals occurred and that creditors] (both secured and unsecured), ... were harmed_”), Clinton's contention is legally in correct: \"A party to a transaction calculated to defraud creditors cannot seriously contend that the property is worthless to creditors seeking recovery, or that the transfer has not otherwise injured them.” Collier, supra pages 10015-16, ¶ 548.02[4] at 548-38 to 548-39 (collecting cases). The magistrate judge found intent to hinder or delay creditors; actual hindrance or delay is unnecessary to attach liability. The case Clinton cites for support, Melamed v. Lake County Nat'l Bank, 727 F.2d 1399 (6th Cir.1984), is inapposite. In Melamed, the court merely held that fraudulent conveyance liability does not exist where a creditor obtains payment of its secured claim because such payment \"does not diminish the assets of the debtor which [a]re available to its creditors.” Id. at 1402. In this case, on the other hand, Acequia's transfers to Clinton clearly depleted the corporation's assets and thereby lessened funds available to the unsecured creditors. . This conclusion applies with equal force to the transfers at issue in Count X (with which Clinton paid his attorneys) to the extent those conveyances were fraudulent. In any event, \"the rule that pre-divorce attorney fees must be treated as community debts ... has been statutorily set aside ..Jensen v. Jensen, 124 Idaho 162, 170, 857 P.2d 641, 649 (1993), and, as a result, the magistrate judge's determination that the Count X transfers did not benefit the marital community is not clearly erroneous. . \"[S]tate law regarding prejudgment interest is applicable via 11 U.S.C. § 544(b).” Agricultural Research," }, { "docid": "18897643", "title": "", "text": "Cir.1992) (“For a finding of fraudulent intent in an actual fraudulent transfer, a reviewing court must apply a clearly erroneous standard.”); Gough v. Titus (In re Christian & Porter Aluminum Co.), 584 F.2d 326, 335 (9th Cir.1978); 4 Collier on Bankruptcy ¶ 548.02[5] at 548-49 n. 62 (15th ed. 1994) (“A finding of a trial judge, ... who has heard the oral testimony that a transfer has or has not been effected with actual fraudulent intent, is undoubtedly entitled to great weight on appeal in view of the peculiar importance in section 548(a)(1) cases of the witness examined on the intent issue.”) [Collier], Applying this deferential standard of review, we affirm the magistrate judge’s holding that Clinton is liable for fraudulent transfers in violation of section 548(a)(1). B. Clinton argues that, instead of intending to defraud Acequia’s creditors, he considered the corporate conveyances to be personal loans or, alternatively, reimbursement for living expenses in lieu of salary. Uniquely, Clinton grounds this contention in his complete failure to observe corporate formalities and his consistent treatment of Acequia “merely as an extension of himself.” We cannot agree. Although novel, Clinton’s “white heart, empty head” argument ignores the use of circumstantial “badges of fraud” in fraudulent transfer cases: It is often impracticable, on direct evidence, to demonstrate an actual intent to hinder, delay or defraud creditors. Therefore, as is the case under the common law of fraudulent conveyance, courts applying Bankruptcy Code § 548(a)(1) frequently infer fraudulent intent from the circumstances surrounding the transfer, taking particular note of certain recognized indi-cia or badges of fraud. Among the more common circumstantial indicia of fraudulent intent at the time of the transfer are: (1) actual or threatened litigation against the debtor; (2) a purported transfer of all or substantially all of the debtor’s property; (3) insolvency or other unmanageable indebtedness on the part of the debtor; (4) a special relationship between the debtor and the transferee; and, after the transfer, (5) retention by the debtor of the property involved in the putative transfer. The presence of a single badge of fraud may spur mere suspicion;" }, { "docid": "18897666", "title": "", "text": "creditors had received a fixed distribution under the plan and stood to gain nothing from the litigation. The court found a “benefit to the estate” because the debtor funded its plan with a line of credit secured by postconfirmation assets: “Absent the post confirmation line of credit ..., unsecured elaimholders would have received no distribution. The retention of power to pur sue avoidance actions ... was the consideration for [the] postpetition and post-confirmation advances to the debtor. No reorganization was possible without [the] new ad-vances_” Tennessee Wheel, 64 B.R. at 726. But cf. Harstad v. First Am. Bank (In re Harstad), 155 B.R. 500, 511-12 (Bankr.D.Minn.1993) (dismissing a postconfirmation preference action because the plan of reorganization “provides for a payment to creditors from a pot of money which will be unaffected by any preference recoveries”). Given this authority, we think recovery of the transfers at issue in Aeequia’s section 544(b) actions sufficiently “benefits the estate” to enable their continued prosecution. First, recovery would secure performance of Acequia’s post-confirmation obligations under the plan of reorganization, including continued payments to Prudential pursuant to a long-term note. And, second, recovery would reimburse the bankruptcy estate for the costs of pursuing fraudulent conveyance litigation against Clinton. More importantly, a contrary determination would lead to the anomalous conclusion reached by the magistrate judge that Clinton engaged in fraudulent conduct by transferring Acequia’s funds with the actual intent to hinder and delay creditors, but that Acequia has no remedy for such conduct because it would not “benefit” from recovery of the funds. The magistrate judge was concerned about preventing a “windfall” to Acequia. We think, however, that requiring Clinton to disgorge wrongfully-transferred funds will merely make the bankruptcy estate whole. See Morris v. Kansas Drywall Supply Co. (In re Classic Drywall, Inc.), 127 B.R. 874, 876 (D.Kan.1991) (“Section 550(a) is intended to restore the estate to the financial condition it would have enjoyed if the transfer had not occurred.”); Pritchard v. Brown (In re Brown), 118 B.R. 57, 60 (Bankr.N.D.Tex.1990) (same). Moreover, even if the recovery did constitute a “windfall,” Acequia has a greater equitable claim" }, { "docid": "18897641", "title": "", "text": "money was returned to Acequia [as claimed by Clinton].” Ultimately, the magistrate judge concluded that Acequia could recover $118,367.97 as fraudulently transferred within .the meaning of section 548(a)(1): The transfer the Court is concerned with is the transfer of Acequia funds to Clinton’s personal name. Such transfers could not help but hinder and delay payment to Acequia’s creditors[] a fact Clinton would certainly have been aware of as the Chief [OJperating [OJjficer of the corporation in charge of all books and records. By then Acequia had missed the two principal payments due to Prudential [a secured creditor] on March 15, 1979 and 1980. Clinton was negotiating a settlement with Prudential to fend off a foreclosure action. Other suits were pending involving KLW [another creditor] and its operation of [Clinton’s] ranch. The bankruptcy filing was imminent and[,] when filed[,] Clinton only listed cash from which Acequia could meet its debts in the amount of $2,000.00. Clinton has not attempted to explain the trans-ferís] other than that the funds were used for personal expenses. Therefore, Clinton will be required to return the funds to Acequia as the transferís] hindered and delayed Acequia creditors. (emphasis added). On Clinton’s motion for reconsideration, the magistrate judge clarified his analysis: ... The Court agrees with Clinton that[,] if the sole indicia of fraud was that Clinton personally used the funds[,] that Acequia did not meet its burden of proof. However, the Court found and sets forth more clearly at this point, that Acequia presented evidence that by the beginning of 1981 numerous badges of fraud existed which shifted the burden of proof to Clinton to explain or uphold the transfer. It was Clinton’s sole explanation that the funds were used for personal expenses that [led] this Court to find that Clinton had not met his burden of proof to explain the transfer. (emphasis added) (citation and footnotes omitted). A. We review for clear error the magistrate judge’s factual determination that Clinton intended to hinder and delay Acequia’s creditors. E.g., Harman v. First Am. Bank (In re Jeffrey Bigelow Design Group, Inc.), 956 F.2d 479, 481 (4th" }, { "docid": "18897661", "title": "", "text": "petition. Under § 544(b), the trustee may clearly avoid the $1 million transfer made two years before the filing of the bankruptcy petition.... Under [ClintonJ’s analysis, the trustee may not avoid the first $1 million transfer, even though it violated § 544(b), because that transfer exceeds the claims of the unsecured creditors. If, however, the first and second transfers occurred by the president writing one $2 million cheek instead of two $1 million checks, then Clinton concedes that the entire $2 million would be voidable. Similarly, suppose a debtor with $50 in unsecured claims makes avoidable transfers of $10, $20, and $45. Under Clinton’s reasoning, the order in which a trustee sought to recover the transfers would determine their avoidability. For example, by pursuing the $10 and $20 transfers first, the trustee could later avoid the $45 transfer in full. By recovering the $45 transfer first, however, the trustee could later avoid either the $10 or $20 transfers, but not both, because the final avoidance action would commence after the trustee had received an amount in excess of the unsecured claims. We refuse to interpret the Bankruptcy Code in such an arbitrary way. Clinton contends that, without a “cap” on section 544(b) avoidance powers, section 548(a) would be a “nullity” because a trustee could recover fraudulent conveyances under both sections 544(b) and 548(a). The fact that both provisions might be available in some cases, however, is completely irrelevant to the interpretation of either statute because “[s]ection 544(b) presents a separate and distinct method of avoidance.” Collier, supra pages 10015-16, ¶ 544.03[1] at 544-16 (footnotes omitted). In fact, courts regularly apply section 544(b) to analyze transactions that also fall within the scope of section 548(a). See, e.g., United Energy, 944 F.2d at 594; Kupetz, 845 F.2d at 845. Thus, we conclude that the magistrate judge erred by “capping” Acequia’s recovery under section 544(b) at the amount of unsecured claims against the bankruptcy estate. 2. Our conclusion that Acequia has a right under section 544(b) to avoid transfers in excess of the amount of unsecured claims does not lead inexorably to the" }, { "docid": "18897646", "title": "", "text": "debtors transferred assets “to two entities entirely owned and controlled by a judgment creditor with whom the debtors had long had an intimate financial relationship [and where] [t]he transfers were effected nine months before involuntary bankruptcy, while [the debtors] were in desperate financial condition”); Consove v. Cohen (In re Roco Corp.), 701 F.2d 978, 984 (1st Cir.1983) (“We may impute any fraudulent intent of [the transferee] to the transferor [the debtor] because, as the company’s president, director, and sole shareholder, he was in a position to control the disposition of its property.”); Nordberg v. Republic Nat’l Bank (In re Chase & Sanborn Corp.), 51 B.R. 739, 740-41 (Bankr.S.D.Fla.1985) (“The extensive and often circuitous movement of funds among the several entities controlled by [the debtor’s principal], to his personal benefit and in this instance to the benefit of a ... relative, and to the injury of the debtor, coupled with the facts that the records of these transactions are in general disarray and no exculpatory explanation has been offered, ... [establish an] actual[ ] intent to hinder, delay and defraud this debt- or’s creditors.”); Collier, supra pages 10015-16, ¶ 548.02[5] at 548-41 to 548-46 (“Circumstances from which courts have been willing to infer fraud include ... a transfer for no consideration where the transferor and the transferee have knowledge of the claims of creditors and know the creditors cannot be paid ... [and] the fact that the transferee was an officer or was an agent or creditor of an officer of an embarrassed corporate trans-feror. ...”) (collecting cases). The fact that Clinton never documented Acequia’s “loans” or “salary payments,” and filed bankruptcy schedules and tax returns that made no reference to these transfers, supports the magistrate judge’s determination that Clinton failed to rebut the circumstantial inference arising from the “badges of fraud.” Accordingly, we affirm the magistrate judge’s conclusion that Clinton received fraudulent transfers in violation of section 548(a)(1). III. Section 544 of the Bankruptcy Code empowers a bankruptcy trustee to invoke state law to recover the debtor’s prepetition transfers: The trustee may avoid any transfer of an interest of the" } ]

[ { "docid": "6932751", "title": "", "text": "favor of the defendant those conflicts about which the judge, after weighing the evidence, has no firm conviction.” Franco-Torres, 869 F.2d at 801. The district court’s reliance on the presentence report rather than “defendant’s version of the facts” thus is not clearly erroneous. United States v. Beard, 913 F.2d 193, 199 (5th Cir.1990). Singer next challenges the two-level increase assigned by the district court for his role as an organizer or leader. Such an increase is warranted “[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity ...” § 3Bl.l(c) The district court adopted the findings of the presentence report, which stated that Singer was the organizer of a conspiracy to distribute cocaine, and “used a chain of command in his distribution scheme” with “Friedman as a middleman and Bader as a cocaine distributor.” The district court’s finding that Singer’s conduct met the organizer requirement is not clearly erroneous under the relevant statutory factors. See § 3B1.1 n. 3; Barreto, 871 F.2d at 512. Singer finally contends that the district court erred in failing to award a two-level reduction for his acceptance of responsibility. A reduction is proper when “the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” U.S.S.G. § 3E1.1. The district court found that Singer refused to discuss the offense conduct with his probation officer, and that the only evidence offered by Singer at the sentencing hearing, a letter, contained nothing approaching an acceptance of responsibility. Singer contends that the Sentencing Guidelines’ acceptance of responsibility provision impermissibly requires individuals to admit guilt in order to receive a sentence reduction. Citing United States v. Perez-Franco, 873 F.2d 455 (1st Cir.1989), Singer urges that the Fifth Amendment bars the state from conditioning an important benefit such as a sentence reduction on a defendant’s willingness to incriminate himself. See also United States v. Oliveras, 905 F.2d 623 (2d Cir.1990). The cases cited by Singer hold that the government may not require defendants to accept responsibility for offenses of which they have not been convicted as a condition for sentence reduction." } ]

[ { "docid": "16635171", "title": "", "text": "961 F.2d 685 (7th Cir. 1992), is misplaced. In Trussel we affirmed the district court’s decision to deny the defendant an acceptance of responsibility reduction because the defendant had attempted to withdraw his guilty plea and did not admit his full role in the conspiracy. Id. at 691. In the present case, the district court correctly found that the defendant refused to accept responsibility for his complete role in his offense. The district court did not clearly err in deciding not to grant the defendant a two-point reduction for acceptance of responsibility. Conclusion The district court did not clearly err in calculating the drug amount under U.S.S.G. § 2D1.4 or in determining that the defendant was not entitled to a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The plain language of U.S.S.G. § 3B1.1 and its commentary also supports the district court’s finding that the defendant was an organizer of the offense and therefore should have received a two-level enhancement of his base offense level. The defendant’s sentence is affirmed. Affirmed. . See United States v. Singer, 970 F.2d 1414, 1419 (5th Cir.1992) (citing application note 3, court approved two-point enhancement for \"organizer\" status); United States v. Schwarck, 961 F.2d 121, 123 (8th Cir.1992) (relying on \"decision-making authority\" factor, court affirmed two-point enhancement for role as manager or supervisor); United States v. Lincoln, 956 F.2d 1465, 1474 (8th Cir.) (reciting application note 3 factors, court affirmed enhancement based on evidence that the defendant initiated and orchestrated perjury scheme), cert. denied, — U.S. —, 113 S.Ct. 259, 121 L.Ed.2d 190 (1992); United States v. Monroe, 943 F.2d 1007, 1019-20 (9th Cir.1991) (citing commentary factors, enhancement under section 3B1.1 proper where defendant exercised decision-making authority and had an \"organizational role\"); United States v. Morgan, 936 F.2d 1561, 1574 (10th Cir.1991) (based on evidence of control over a subordinate, court affirmed two-point enhancement), cert. denied, — U.S. —, 112 S.Ct. 1190, 117 L.Ed.2d 431 (1992); United States v. Gonzales, 929 F.2d 213, 216 (6th Cir.1991) (citing application note 3 factors, court affirmed enhancement for \"organizer\" status); United States v. Smith," }, { "docid": "12423876", "title": "", "text": "HEANEY, Senior Circuit Judge. Randall Dennis Furlow raises two sentencing issues in this appeal. He claims that the district court erred by (1) denying him a credit for acceptance of responsibility, and (2) enhancing his sentence based on a finding that Furlow was an organizer or leader of criminal activity. A panel of this court agreed with Furlow and vacated Fur-low’s sentence, one judge dissenting. United States v. Furlow, 952 F.2d 171 (8th Cir.1991). We subsequently vacated the panel opinion, and we now affirm the district court. Furlow pleaded guilty to three counts of stealing bank deposits. After the plea but before sentencing, Furlow admitted that he had passed seven forged checks, three of which had formed the basis of the indictment. Furlow also admitted engaging in similar activity in nine other states. Id. at 172. After hearing argument on sentencing issues, the district court added two points to Furlow’s offense level for his role in the offense as an organizer or leader, and declined to credit Furlow for acceptance of responsibility.' Furlow first claims that the district court should have granted him a two-level reduction for acceptance of responsibility. We will not disturb a district court’s decision to deny or grant a credit for acceptance of responsibility unless that decision is clearly erroneous — as with other findings of fact, the district court is in a unique position to evaluate a defendant’s acceptance of responsibility. United States v. Amos, 952 F.2d 992, 995 (8th Cir.1991). The guidelines state that a defendant who enters a guilty plea is not entitled to a sentencing reduction for acceptance of responsibility as a matter of right. U.S.S.G. § 3El.l(c). In the commentary, the application notes enumerate some seven factors that may be considered in determining whether a defendant qualifies for the reduction for acceptance of responsibility. The application notes further state that the entry of a plea of guilty before commencement of trial combined with truthful admission of involvement in the offense and related conduct is significant evidence of acceptance of responsibility. U.S.S.G.- § 3E1.1 application n. 3. It is evident that the" }, { "docid": "23633298", "title": "", "text": "court enhanced Wills’ offense by two levels pursuant to U.S.S.G. § 3Bl.l(c) for playing an aggravating role in the crime. Section 3Bl.l(e) provides: “Based on the defendant’s role in the offense, increase the offense level as follows: (e) If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels.” The commentary to U.S.S.G. § 3B1.1 states that, among other factors, whether an enhancement for an aggravating role is warranted, are: “[T]he recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.” U.S.S.G. § 3B1.1, Application Note 4. The district court concluded that Wills was the “mastermind” of the bank robbery. The record supports this finding. Wills recruited MacPheators to participate in the offense. Wills paid MacPheators $1,500 for driving the getaway car. Wills kept over $35,000 for his role in the offense. The district court properly enhanced Wills’ sentence two levels for his role in the offense. See United States v. Castro, 972 F.2d 1107, 1113 (9th Cir.1992) (upholding district court’s finding that the defendant was the leader of a conspiracy where circumstantial evidence suggested that the defendant exercised the decision making authority over the conspiracy), cert. denied, 507 U.S. 944, 113 S.Ct. 1350, 122 L.Ed.2d 731 (1993). Wills further asserts that the court’s two level enhancement for obstruction of justice was inappropriate. The district court enhanced Wills’ base offense by two levels for obstruction of justice pursuant to U.S.S.G. § 3C1.1. Section 3C1.1 provides: “If the defendant willfully obstructed or impeded, or attempted to obstruct or impede the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.” The district court based its enhancement on the fact that Wills conspired to escape from FDC Pleasanton to avoid prosecution under this indictment and Wills’ subsequent guilty plea to the charge of conspiracy" }, { "docid": "5364313", "title": "", "text": "and the role of his codefendants in the fraud scheme. For example, at his plea hearing, Arguedas agreed that the government accurately stated that his codefendant Estrada assisted in the scheme. However, in an interview with a federal agent immediately after his plea hearing, Arguedas stated that he himself played the role of Estrada. Arguedas also stated in that interview that his codefendant Smith had no knowledge of the fraud scheme. Yet in his proffer, Arguedas stated that he paid Smith $1,000 for his part in the scheme. The record supports the district court’s finding that Arguedas obstructed justice by making materially false statements during the course of his investigation and prosecution. C. The Acceptance of Responsibility Adjustment Section 3E1.1 of the Sentencing Guidelines provides for up to a three-level downward adjustment to a defendant’s offense level “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense” by assisting authorities in the investigation or prosecution of his own misconduct by timely providing complete information to the government or by timely notifying authorities of his intention to enter a plea of guilty. U.S.S.G. § 3E1.1 (1994). This Court reviews the district court’s determination of acceptance of responsibility only for clear error. United States v. Anderson, 23 F.3d 368, 369 (11th Cir.1994). Arguedas contends that he was entitled to a three-level downward adjustment to his offense level because he entered a guilty plea and accepted full responsibility for his acts. “An adjustment ... for acceptance of responsibility is not warranted when a defen dant’s conduct results in an enhancement for obstruction of justice.” United States v. Kramer, 943 F.2d 1543, 1547 n. 4 (11th Cir. 1991) (citing U.S.S.G. § 3E1.1, Application Note 4), cert. denied, 506 U.S. 818, 113 S.Ct. 63, 121 L.Ed.2d 31 (1992). Although Arguedas did plead guilty, he repeatedly made materially false statements to the authorities and to the district court. The district court found that Arguedas’s misstatements impeded the investigation and prosecution of his offenses and, accordingly, it enhanced Arguedas’s sentence for obstruction of justice. Imposition of that enhancement was not clearly erroneous. AFFIRMED." }, { "docid": "2321442", "title": "", "text": "Graham was subjected to vigorous cross-examination and the trial judge was able to assess the credibility of Graham’s testimony. B. Role in the Offense Pedroli argues the court erred in enhancing his base offense level under Section 3B1.1 of the United States Sentencing Guidelines (“U.S.S.G.”) for his role as an organizer or leader of a criminal enterprise. The district court considers the following factors in determining whether § 3B1.1 is applicable: the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of. accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. . U.S.S.G. § 3B1.1, comment, (n. 3) (1991). The court’s determination of whether Pe-droli had an aggravating role in the bank robbery “[is] a fact question for the district judge to resolve” and we will not reverse the district court’s findings unless they are clearly erroneous. United States v. Collar, 904 F.2d 441, 442 (8th Cir.1990) (citation omitted). The government contends there was ample evidence to support the two-point enhancement. We agree. Graham testified that Pedroli recruited him to commit the crime, provided him with the baseball hat, sunglasses and demand note, and organized the bank robbery. Section lB1.3(a)(2) provides, in part, that the aggravating role adjustment “shall be determined on the basis of ... all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § lB1.3(a)(2) (1991). “Given the broad definition of those who are subject to enhanced sentences under section 3B1.1,” United States v. Schwarck, 961 F.2d 121, 123 (8th Cir.1992) (citations omitted), the district court did not err in finding that Pedroli acted as an organizer or supervisor of the bank robbery within the definition of 3B1.1. C. Criminal History Category Pedroli contends the district court erred in calculating his criminal history category. He first argues the court’s assignment of" }, { "docid": "22419999", "title": "", "text": "notice that it intended to deny a downward adjustment); and United States v. Adams, 938 F.2d 96, 99 (8th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 974, 117 L.Ed.2d 138 (1992) (holding that Burns does not require the government to give defendant notice of enhancement under U.S.S.G. § 4B1.1 where the presentence report identified that section as applicable and calculated a guideline sentencing range using that section). The district court adjusted Adipietro’s sentence on a ground identified for adjustment in the presen-tence report. The fact that the presen-tence report provides a section pertaining to “adjustment for role in the offense” constitutes sufficient due process notice. This Court has held that the terms “manager” and “supervisor” as used in both section 3Bl.l(b) and in subsection (c) have the same meaning. United States v. Pierce, 907 F.2d 56, 57 n. 3 (8th Cir.1990). The presentence report in this case recommended a two-level enhancement under subsection (c) of section 3B1.1 for Adipie-tro’s role as a manager or supervisor. The district court ultimately enhanced Adipie-tro’s sentence pursuant to subsection (b) of section 3B1.1 based on Adipietro’s role as a manager or supervisor. Therefore, because Adipietro received the presentence report at least 10 days prior to the sentencing date, Adipietro had adequate notice of an enhancement based on his role as a manager or supervisor in the conspiracy. The only thing Adipietro did not have notice of was the possibility that his sentence might be enhanced by three levels instead of two. Adipietro’s reliance on Burns is misplaced. 4. Acceptance of Responsibility Adipietro’s final argument is that the district court erred in not giving Adipie-tro a two-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. The district court decided that Adipietro was not entitled to a reduction for acceptance of responsibility based on a number of factors: (1) the timeliness of Adipietro’s admission of his involvement, (2) the fact that Adipietro admitted to the probation officer only the facts brought out at trial, and (3) the fact that Adipietro never volunteered any information relating to his involvement in the conspiracy. S.Tr. 157-62." }, { "docid": "18851770", "title": "", "text": "Tovar’s offense level for obstruction of justice but refused to decrease his offense level for acceptance of responsibility. The Commentary to § 3E1.1 provides that an obstruction of justice enhancement “ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.” Application Note 4. Here, the district court commented that, because Mr. To-var had obstructed justice by misrepresenting his age in his motion to dismiss the conspiracy indictment, he had not clearly accepted responsibility for his crime. The district court did not clearly err in refusing to reduce Mr. Tovar’s offense level for acceptance of responsibility. B. Role as Organizer, Leader, Manager or Supervisor Mr. Tovar asserts that he and Mr. Madera were coconspirators with equal culpability and that the district court therefore erred by increasing his offense level by two points under U.S.S.G. § 3Bl.l(c) for being an “organizer, leader, manager, or supervisor.” We review the trial court’s determination that Mr. Tovar was a leader or organizer under the clearly erroneous standard. United States v. Powell, 973 F.2d 885, 892 (10th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1598, 123 L.Ed.2d 161 (1993). “Key determinants of the applicability of § 3B1.1 are control or organization: the defendant must have exercised some degree of control over others involved in the commission of the offense or he must have been responsible for organizing others for the purpose of carrying out the crime.” United States v. Reid, 911 F.2d 1456, 1464 (10th Cir.1990) (internal quotations omitted), cert. denied, 498 U.S. 1097, 111 S.Ct. 990, 112 L.Ed.2d 1074 (1991). Mr. Tovar asserts that the district court improperly relied upon Mr. Madera’s statements rather than the presentence report in determining that Mr. Tovar was an organizer or leader. We disagree. In making its determination, the district court may take into account any evidence, including hearsay from previous proceedings, provided that the evidence has sufficient indicia of reliability to support its probable accuracy. United States v. Hershberger, 962 F.2d 1548, 1554-56 (10th Cir.1992); United States v. Beaulieu, 900 F.2d 1537 (10th Cir.), cert. denied, 497 U.S. 1009, 110 S.Ct. 3252, 111 L.Ed.2d" }, { "docid": "2364023", "title": "", "text": "persuade Karr to mischaracterize DuPont’s drug debts as gambling debts. We refuse to hold that the district court committed clear error in determining that Pitz and DuPont obstructed justice. C. Acceptance of Responsibility Section 3E1.1 of the Guidelines permits a two-point reduction from a defendant’s base offense level “if the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” U.S.S.G. § 3E1.1. Commentary 3 to section 3E1.1 indicates that the district court correctly ruled that Pitz and DuPont were not entitled to a section 3E1.1 reduction because they had not accepted full responsibility for their offenses despite their guilty pleas. Commentary 3 provides: Entry of a plea of guilty prior to the commencement of trial combined with truthful admission of involvement in the offense and related conduct will constitute significant evidence of acceptance of responsibility for the purposes of this section. However, this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility. U.S.S.G. § 3E1.1, comment. 3 (emphasis added). In denying the section 3E1.1 reduction, the sentencing court noted that application note 4 provides that an enhancement for obstruction of justice usually indicates that a defendant has not accepted responsibility. Furthermore, the defendants had denied responsibility for their respective roles in the conspiracy. A defendant bears the burden of demonstrating that he is entitled to the reduction in offense level. United States v. Skinner, 986 F.2d 1091, 1100 (7th Cir.1993); United States v. Leiva, 959 F.2d 637, 644 (7th Cir.1992) (citing United States v. Camargo, 908 F.2d 179, 185 (7th Cir.1990)), cert. denied, — U.S. —, 113 S.Ct. 2372, 124 L.Ed.2d 277 (1993). We must give due deference to the district court’s unique opportunity to more accurately evaluate a defendant’s acceptance of responsibility. 18 U.S.C. § 3742(e); United States v. Franklin, 902 F.2d 501, 505 (7th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 274, 112 L.Ed.2d 229 (1990) (quoting U.S.S.G. § 3E1.1 application note 5). We will reverse a district court’s decision concerning acceptance of responsibility only for clear error because ‘“[t]he question of whether" }, { "docid": "12543636", "title": "", "text": "extensive. Id. § 3Bl.l(b). This is a question of fact which we review under the clearly erroneous standard. United States v. Sutera, 933 F.2d 641, 649 (8th Cir.1991); United States v. Streeter, 907 F.2d 781, 787 (8th Cir.1990) (Streeter); United States v. Collar, 904 F.2d 441, 442 (8th Cir.1990). Wichmann argues that the district court erroneously based its finding of a managerial or supervisory role solely on the purity of the cocaine sold by him and that there was no evidence that he managed or controlled anyone. We disagree and hold there was sufficient evidence to support the district court’s finding. Purity of drugs is an appropriate factor to consider because “possession of unusually pure narcotics may indicate a prominent role in the criminal enterprise and proximity to the source of the drugs.” U.S.S.G. § 2D1.1, note 9 (1990). Not only did Wichmann possess and sell ninety percent pure cocaine, but he was selling it to about seventy-five customers in quantities of up to one-half ounce. Evidence at the sentencing hearing showed that at one time Wichmann had four ounces of cocaine. Additionally, Wichmann recruited others to help finance his cocaine purchases. This evidence was sufficient for the district court to find that Wichmann was a manager or supervisor. Wichmann does not dispute that the alleged conspiracy involved five or more persons. We therefore affirm the district court’s three-level enhancement for Wichmann’s role in the offense. Acceptance of Responsibility Wichmann also argues that the district court erred in denying him a two-level reduction for acceptance of responsibility. Id. § 3E1.1. We give great deference to the district court when “reviewing its evaluation of a defendant’s acceptance of responsibility, and will disturb the district court’s decision only if it is without foundation.” United States v. Russell, 913 F.2d 1288, 1295 (8th Cir.1990) (Russell), cert. denied, — U.S. —, 111 S.Ct. 1687, 114 L.Ed.2d 81 (1991); see Streeter, 907 F.2d at 787; U.S.S.G. § 3E1.1, note 5 (1990). Wichmann argues that because of his guilty plea, he is entitled to the reduction for acceptance of responsibility. Wichmann argues that the timeliness of" }, { "docid": "4043194", "title": "", "text": "statements by Ledezma that had just been referenced by government counsel. Thus, because we can determine from the context of the district court’s findings which statements it thought were perjurious, we find no clear error and affirm the enhancement of Ledezma’s sentence for obstruction of justice. Next, Ledezma argues that the district court clearly erred in enhancing her sentence based on her role as a manager or supervisor. The sentencing guidelines mandate that a sentencing court increase a defendant’s offense level by three levels “[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive.... ” U.S.S.G. § 3Bl.l(b). The government bears the burden of establishing the factors supporting the enhancement by a preponderance of the evidence. United States v. Gibson, 985 F.2d 860, 866 (6th Cir.), cert. denied, — U.S. -, 113 S.Ct. 2981, 125 L.Ed.2d 678 (1993). Ledezma contends that there was no evidence that she exercised authority in the organization. She claims that at most she was a go-between. The district court specifically found that Ledezma was involved in giving instructions to the Ferrer brothers and took an active role in directing the delivery of the cocaine. This finding is entirely consistent with the evidence presented at trial. The district court’s determination that a defendant played an aggravating role under section 3B1.1 is “ ‘heavily dependent on the facts,”’ and we review such enhancements for clear error. United States v. Okayfor, 996 F.2d 116, 122 (6th Cir.), cert. denied, — U.S. -, 114 S.Ct. 238, 126 L.Ed.2d 192 (1993) (citation omitted). We can find no clear error, and accordingly, we affirm the enhancement of Ledezma’s sentence for her role as a manager or supervisor. 2. Zajac Zajac argues that the district court clearly erred in enhancing his sentence for obstruction of justice because the court failed to make a specific finding of perjury. As we just stated, under the sentencing guidelines, a sentencing judge may enhance a defendant’s offense level by two points for obstruction of justice, which includes perjury. U.S.S.G." }, { "docid": "16205711", "title": "", "text": "the situation the guidelines intended to address through the section 2D 1.1(b)(1) enhancement. The district court’s finding by a preponderance of the evidence that it was not clearly improbable the weapons were connected to the offense is therefore not clearly erroneous. We affirm the enhancement. 2) Acceptance of Responsibility The district court determined that Rowley was not technically entitled to a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1, since he continued to deny the existence of the conspiracy for which he was convicted. Whether or not to grant the reduction is largely within the discretion of the sentencing judge, United States v. Keene, 915 F.2d 1164, 1170 (8th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1001, 112 L.Ed.2d 1084 (1991), and we find no abuse of discretion. 3) Organizing the Offense Rowley received a two-level enhancement under U.S.S.G. § 3Bl.l(c), for being the organizer of the criminal activity. The court based its finding on the sophistication of Rowley’s “farm” and his use of a cousin’s address to receive some growing equipment. Sentencing Transcript, p. 56. The record shows only that the cousin knew Rowley was using his address to receive “stuff” he wanted to hide from his wife, not that the cousin knew what the “stuff” was. Trial Transcript, p. 1208, 1286-87. Since the jury had alternative bases available for their conspiracy conviction, the conviction itself provides no finding that the cousin knew what the “stuff” was. Being part of a conspiracy does not imply that one is an organizer, leader, manager, or supervisor in the criminal activity. As the district court stated: It was a sophisticated growing operation, that’s clear, but there is a paucity of evidence ... of any sales, no evidence of a group of salesmen who he directed or supplied or supervised. Sentencing Transcript, p. 56. In fact, from the record, the evidence for the conspiracy itself was thin. The key determinants of section 3B1.1 are control and organization. The defendant must have exercised some degree of control over others involved in the commission of the offense, or he must have been" }, { "docid": "22420000", "title": "", "text": "subsection (b) of section 3B1.1 based on Adipietro’s role as a manager or supervisor. Therefore, because Adipietro received the presentence report at least 10 days prior to the sentencing date, Adipietro had adequate notice of an enhancement based on his role as a manager or supervisor in the conspiracy. The only thing Adipietro did not have notice of was the possibility that his sentence might be enhanced by three levels instead of two. Adipietro’s reliance on Burns is misplaced. 4. Acceptance of Responsibility Adipietro’s final argument is that the district court erred in not giving Adipie-tro a two-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. The district court decided that Adipietro was not entitled to a reduction for acceptance of responsibility based on a number of factors: (1) the timeliness of Adipietro’s admission of his involvement, (2) the fact that Adipietro admitted to the probation officer only the facts brought out at trial, and (3) the fact that Adipietro never volunteered any information relating to his involvement in the conspiracy. S.Tr. 157-62. A decision by a district court as to whether a defendant has accepted responsibility is largely a factual question which turns on issues of credibility. United States v. Earles, 955 F.2d 1175, 1180 (8th Cir.1992); and United States v. Evidente, 894 F.2d 1000, 1002 (8th Cir.), cert. denied, 495 U.S. 922, 110 S.Ct. 1956, 109 L.Ed.2d 318 (1990). A district court’s decision on this issue will be reversed on appeal only if clearly erroneous. United States v. Miller, 951 F.2d 164, 165 (8th Cir.1991) (citing United States v. Laird, 948 F.2d 444, 446 (8th Cir.1991)). Due deference is given to the findings of the district court in denying acceptance of responsibility. We therefore affirm the district court’s refusal to give Adipietro a reduction for acceptance of responsibility. B. ISSUES RAISED BY AURICCHIO 1. Multiple Conspiracy Auricchio argues that his conviction should be reversed and his case remanded for retrial because the evidence produced by the government at trial proved multiple conspiracies rather than a single conspiracy as charged in the indictment. Auricchio argues that the" }, { "docid": "21596355", "title": "", "text": "not a perfect one.”) (citing Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986)), cert. denied, — U.S. -, 114 S.Ct. 148, 126 L.Ed.2d 110 (1993). G. Sentencing Error 1. Acceptance of Responsibility Tuesta argues that the district court improperly denied a reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1, without affording him an adequate opportunity to evince remorse. Tuesta distorts the record. He continued to assert his innocence during a post-conviction interview with the probation officer. At sentencing, the district court twice invited him to accept responsibility, by pointing out that the sentencing hearing would be his last opportunity to do so. Nonetheless, though Tuesta asked the court for leniency, he said nothing which might be taken to indicate remorse. Thus, he squandered several opportunities to verbalize acceptance of responsibility, leaving the district court little choice but to adopt a presentence report recommendation that no reduction be allowed. There was no error. 2. Sentencing Enhancement for Managerial Role Finally, Tuesta challenges the two-level enhancement imposed for his managerial role in the offense, see U.S.S.G. § 3B1.1 (1993), which the district court premised in part upon the unusual purity of the cocaine supplied by Tuesta. A defendant’s role in the offense must be established by a preponderance of the evidence, see United States v. Sostre, 967 F.2d 728, 731 (1st Cir.1992), and the sentencing court’s factual findings are reviewed only for clear error, Jadusingh, 12 F.3d at 1169. The exercise of decision-making authority, the degree of participation in planning or organizing the offense, and the degree of control and authority the defendant exercised over others are among the factors to be considered in determining managerial role. See U.S.S.G. § 3B1.1, comment (n. 4). The record is replete with evidence that Martinez acted at the direction of Tuesta in setting the time and place of the drug transaction, and the price and quantity of the cocaine. United States v. Cronin, 990 F.2d 663, 665 (1st Cir.1993) (noting that such evidence supports finding of managerial role.) Additionally, the district court properly relied on the" }, { "docid": "8172325", "title": "", "text": "overall criminal activity, the base offense level is increased by four levels pursuant to Section 3B1.1. Incidentally, for purposes of the record that is my finding with respect to your arguments. Based on this record, the court therefore adopted the PSR’s recommendations and implicitly found that Ovalle possessed 800 kilograms of cocaine, Ovalle possessed the firearm during the commission of the offense, and Ovalle was an organizer or leader in the criminal activity. The court therefore made the necessary findings in order to adequately comply with Fed.R.Crim.P. 32(c)(3)(D). 2. Challenges to the Enhancements Ovalle claims that the court erred in determining his sentence by ruling against him with respect to his three sentencing challenges. With respect to Ovalle’s first challenge, a four level increase in a defendant’s BOL is appropriate where “the defendant was an organizer or leader of a criminal activity that involved five or more participants ...” U.S.S.G. § 3Bl.l(a); See United States v. Sabatino, 943 F.2d 94, 101 (1st Cir.1991); United States v. McDowell, 918 F.2d 1004, 1011 (1st Cir.1990). The application notes to U.S.S.G. § 3B1.1 list seven nonexclusive factors which the court should consider when considering whether a defendant played a leadership or organizational role as compared to a managerial or supervisory role. These factors include “the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.” U.S.S.G. § 3B1.1, commentary n. 3; Sabatino, 943 F.2d at 101. The sentencing court found that Rivera played a leadership or organizational role in this drug smuggling operation, and then enhanced his sentence. The court did not err. The evidence in the record supports the conclusion that Ovalle orchestrated and organized the logistics of the smuggling plan. The record reasonably indicated that Ovalle was the individual who had the closest links to the source of the cocaine. Ovalle" }, { "docid": "13516809", "title": "", "text": "of sexual abuse demonstrated remorse but stated that he did not remember events because he was drunk and “had difficulty in believing that he had committed the offense”); United States v. Cree, 915 F.2d 352, 355 (8th Cir.1990) (denial of adjustment not clear error where defendant convicted of involuntary manslaughter characterized actions as “mistake”). D. The district court did not clearly err in refusing a one level reduction for acceptance of responsibility under § 3E1.1(b)(1). We review the district court’s denial of a § 3E1.1(b)(1) adjustment for clear error. McQuay, 7 F.3d at 801. We find no such error here. A one level 'adjustment under § 3E1.1(b)(1) is available only where the defendant has already qualified for a two level reduction for acceptance of responsibility under § 3E1.1(a). United States v. Tovar, 27 F.3d 497, 499 n. 1 (10th Cir.1994). Because the district court properly denied the § 3E 1.1(a) reduction, it properly denied the § 3E 1.1(b)(1) reduction as well. E. The district court erred in giving a two level enhancement for Makes Room’s role in the offense under § 3B1.1(c). Section 3B1.1(c) provides for a two level enhancement if “the defendant was an organizer, leader, manager, or supervisor” in the criminal activity. The district court found that Makes Room was a leader because it found that he “was the driver of the car, that he was older than the other participants who were [ ] 14 and 15 years old, and ... [that he admitted] that he was showing [the occupants of the Impala] that [the occupants of the Oldsmobile] could fight back.” Sentencing Tr. at 25. We reverse the grant of the enhancement and remand for resentencing. The government failed to provide sufficient evidence to the sentencing judge to support the enhancement. The government bears the burden to prove by a preponderance of the evidence that Makes Room acted in an aggravating role. United States v. Monroe, 978 F.2d 433, 435 (8th Cir.1992); United States v. Levy, 992 F.2d 1081, 1083 (10th Cir.1993). The sentencing judge stated that he relied upon the presentence report in granting the" }, { "docid": "18851769", "title": "", "text": "F.2d 608, 613 (10th Cir.1992) (citations and internal quotations omitted), cert. denied, — U.S. -, 113 S.Ct. 1331, 122 L.Ed.2d 715 (1993). An acceptance of responsibility determination by a district court is a question of fact reviewable under a clearly erroneous standard. The burden of proof is on the defendant and the quantum of proof is by a preponderance of the evidence. Whether a defendant should be granted a two level adjustment for acceptance of responsibility depends upon whether a defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct. The presentence report in this case stated that Mr. Tovar “clearly admitted to and accepted responsibility for his criminal conduct” and recommended that he receive a two level reduction for his acceptance of responsibility. The presentence report also recommended that Mr. Tovar receive a two-point upward adjustment under § 3C1.1 for obstruction of justice for making “materially false statements and provid[ing] materially false evidence to the court arguing that he should be adjudged a juvenile.” The district court increased Mr. Tovar’s offense level for obstruction of justice but refused to decrease his offense level for acceptance of responsibility. The Commentary to § 3E1.1 provides that an obstruction of justice enhancement “ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.” Application Note 4. Here, the district court commented that, because Mr. To-var had obstructed justice by misrepresenting his age in his motion to dismiss the conspiracy indictment, he had not clearly accepted responsibility for his crime. The district court did not clearly err in refusing to reduce Mr. Tovar’s offense level for acceptance of responsibility. B. Role as Organizer, Leader, Manager or Supervisor Mr. Tovar asserts that he and Mr. Madera were coconspirators with equal culpability and that the district court therefore erred by increasing his offense level by two points under U.S.S.G. § 3Bl.l(c) for being an “organizer, leader, manager, or supervisor.” We review the trial court’s determination that Mr. Tovar was a leader or organizer under the clearly erroneous standard. United States v. Powell, 973 F.2d 885, 892 (10th Cir.1992)," }, { "docid": "22804521", "title": "", "text": "as a manager. The amount of evidence against her, moreover, is much greater than that which was present in the cases she cites for support. See United States v. Walker, 160 F.3d 1078, 1091-92 (6th Cir.1998) (holding that the district court’s U.S.S.G § 3Bl.l(c) finding was clearly erroneous where not a single witness discussed any organizational, administrative, or decisionmaking role for the defendant in the drug operation); United States v. Burgos, 324 F.3d 88, 92-93 (2d Cir.2003) (holding, under a de novo standard of review, that the defendant was not a manager because he did not exercise control over anyone else; rather, the extent of his involvement was that he offered his services as a stolen-check broker to a coconspirator and demanded that another coconspirator make an advance payment on a set of checks); United States v. Jones, 160 F.3d 473, 482-83 (8th Cir.1998) (holding that the district court’s finding-under USSG § 3B1.1 was clearly erroneous where evidence showed that the defendant “merely sold drugs for resale,” and where none of the USSG § 3B1.1 factors were present); United States v. Graham, 162 F.3d 1180, 1183 (D.C.Cir.1998) (holding that the defendant was not a manager under USSG § 3Bl.l(b) where a coconspirator’s vague, nonspecific testimony showed only that the defendant “was sometimes a lieutenant,” and that the defendant referred potential drug buyers to fellow conspirators who actually sold the drugs). In light of the foregoing, we conclude that the district court did not err in finding that Doeherty was a manager for the purpose of enhancing her sentence. D. Jeross: Obstructionist conduct and acceptance of responsibility Jeross challenges the district court’s failure to apply a three-level reduction to his base offense for acceptance of responsibility under USSG § 3E1.1. Although Jeross acknowledges that the court rejected his request because he was found to have obstructed justice, he argues that the facts of his case warrant an exception to the general rule that a defendant who has obstructed justice is ineligible for an acceptance-of-responsibility reduction. Jeross relies on Note 4 to USSG § 3E1.1, which provides that conduct resulting in an" }, { "docid": "22308244", "title": "", "text": "S.Ct. 2072, 23 L.Ed.2d 656 (1969). Monroy does not cite, nor did we locate, any authority for the proposition that due process is violated where a court reexamines all aspects of a sentence following a successful appeal of a prior sentence and a general remand. We reject Monroy’s due process argument. B. Enhancements for Roles in the Offense Guidelines § 3B1.1 permits a four-level enhancement if the defendant was an “organizer or leader” of illegal activity. A district court’s determination that a defendant was an “organizer or leader” is reviewed for clear error. United States v. Monroe, 943 F.2d 1007, 1019 (9th Cir.1991), cert. denied, 503 U.S. 971, 112 S.Ct. 1585, 118 L.Ed.2d 304 (1992). The district court need not make specific findings of fact in support of an upward role adjustment. United States v. Rigby, 896 F.2d 392 (9th Cir.1990). 1. MeTague In the first sentencing proceeding, the district judge followed the recommendation in the Presentence Report and found that a three-level upward adjustment was warrant ed under Guidelines § 3Bl.l(b) for McTa-gue’s role as a “manager or supervisor.” On resentencing, however, the court imposed a four-level upward adjustment pursuant to § 3Bl.l(a) on the ground that McTague was an “organizer or leader.” McTague contends that this characterization of his role was error. According to McTague, his job, in essence, was to “watch over” the Sylmar warehouse; therefore, he was more of a watchman than an organizer or leader. The factors to be considered when determining whether a defendant was an organizer or leader include: the exercise of decisionmaking authority, the nature of the offense and the defendant’s participation in the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, and the degree of control and authority exercised over others. U.S.S.G. § 3B1.1, comment, (n.4); see also United States v. Hernandez, 952 F.2d 1110, 1119 (9th Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 334, 121 L.Ed.2d 252 (1992); United States v. Sanchez, 908 F.2d 1443, 1448 (9th Cir.1990). The Presentence Report states that McTague was “the sole distributor” in" }, { "docid": "16635172", "title": "", "text": "See United States v. Singer, 970 F.2d 1414, 1419 (5th Cir.1992) (citing application note 3, court approved two-point enhancement for \"organizer\" status); United States v. Schwarck, 961 F.2d 121, 123 (8th Cir.1992) (relying on \"decision-making authority\" factor, court affirmed two-point enhancement for role as manager or supervisor); United States v. Lincoln, 956 F.2d 1465, 1474 (8th Cir.) (reciting application note 3 factors, court affirmed enhancement based on evidence that the defendant initiated and orchestrated perjury scheme), cert. denied, — U.S. —, 113 S.Ct. 259, 121 L.Ed.2d 190 (1992); United States v. Monroe, 943 F.2d 1007, 1019-20 (9th Cir.1991) (citing commentary factors, enhancement under section 3B1.1 proper where defendant exercised decision-making authority and had an \"organizational role\"); United States v. Morgan, 936 F.2d 1561, 1574 (10th Cir.1991) (based on evidence of control over a subordinate, court affirmed two-point enhancement), cert. denied, — U.S. —, 112 S.Ct. 1190, 117 L.Ed.2d 431 (1992); United States v. Gonzales, 929 F.2d 213, 216 (6th Cir.1991) (citing application note 3 factors, court affirmed enhancement for \"organizer\" status); United States v. Smith, 914 F.2d 565, 569 (4th Cir.1990) (same). But see United States v. Bost, 968 F.2d 729, 734 (8th Cir.1992) (court relied on none of the commentary factors, instead observing that the defendant was the leader of the conspiracy and the most culpable of those that were indicted); United States v. Tsai, 954 F.2d 155, 166 (3d Cir.) (court relied on none of the commentary factors, relying instead on an assessment of the defendant's relative culpability for the offense), cert. denied, — U.S. —, 113 S.Ct. 93, 121 L.Ed.2d 54 (1992); United States v. Pettit, 903 F.2d 1336, 1341 (10th Cir.) (remanding on other grounds, but finding no problem with enhancement based on evidence only showing that the defendant allowed others to live in a house that they used to conduct crack sales), cert. denied, 498 U.S. 873, 111 S.Ct. 197, 112 L.Ed.2d 159 (1990); United States v. Carrillo, 888 F.2d 117, 118 (11th Cir.1989) (upheld enhancement based upon evidence that defendant managed stash house, received cocaine, and distributed various amounts of the drug to others)." }, { "docid": "16635170", "title": "", "text": "the conspiracy and distribution scheme. Contrary to the unambiguous testimony of Agent Final at Mr. Skinner’s sentencing hearing and the incriminating tape recordings of the drug negotiations, Mr. Skinner maintained that he was only responsible for the twenty pounds of marijuana that defendant Mangels was to buy. In his letter to the sentencing court, Mr. Skinner also minimized his role and claimed that he was merely the victim of a heroin-addicted informant and overzealous government agents. A reduction for acceptance of responsibility does not automatically apply merely because a defendant pleads guilty, United States v. Escobar-Mejia, 915 F.2d 1152, 1153 (7th Cir.1990); Franklin, 902 F.2d at 505-06, and it applies only when the defendant “fesses up to his actual offense.” Escobar-Mejia, 915 F.2d at 1153 (noting that no reduction applied when defendant, who pleaded guilty, claimed he was the pawn of others and denied that he was responsible for distribution of more than five kilograms of cocaine although evidence indicated he had distributed at least seven kilograms). The defendant’s reliance on United States v. Trussel, 961 F.2d 685 (7th Cir. 1992), is misplaced. In Trussel we affirmed the district court’s decision to deny the defendant an acceptance of responsibility reduction because the defendant had attempted to withdraw his guilty plea and did not admit his full role in the conspiracy. Id. at 691. In the present case, the district court correctly found that the defendant refused to accept responsibility for his complete role in his offense. The district court did not clearly err in deciding not to grant the defendant a two-point reduction for acceptance of responsibility. Conclusion The district court did not clearly err in calculating the drug amount under U.S.S.G. § 2D1.4 or in determining that the defendant was not entitled to a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The plain language of U.S.S.G. § 3B1.1 and its commentary also supports the district court’s finding that the defendant was an organizer of the offense and therefore should have received a two-level enhancement of his base offense level. The defendant’s sentence is affirmed. Affirmed. ." } ]

[ { "docid": "22064640", "title": "", "text": "Ill), which provides: “No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant.” Acknowledging that this statute if applicable would prevent pre-induction review of appellee’s classification, the District Court held that, so applied, § 10 (b) (3) was unconstitutional because to provide for judicial consideration of the lawfulness of the Board’s action only as a defense to a criminal prosecution would require that appellee pursue a “tortuous judicial adventure” so beset by “hazards” and “penalties” as to result “in no review at all.” The Government has appealed under 28 U. S. C. § 1252 which allows direct appeal to this Court of “an interlocutory or final judgment, decree or order of any court of the United States . . . holding an Act of Congress unconstitutional in any civil action ... to which the United States ... or any officer . . . thereof ... is a party.” This Court has today, after full consideration, decided Oestereich v. Selective Service Bd., ante, p. 233. Because the result here is dictated by the principles enunciated in that case, it is appropriate to decide this case summarily, reversing the District Court. In Oestereich the delinquency procedure by which the registrant was reclassified was without statutory basis and in conflict with petitioner’s rights explicitly established by the statute and not dependent upon an act of judgment by the Board. Oestereich, as a divinity student, was by statute unconditionally entitled to exemption. Here, by contrast, there is no doubt of the Board’s statutory" } ]

[ { "docid": "22676507", "title": "", "text": "construction leaves § 10 (b)(3) unimpaired in the normal operations of the Act. No one, we believe, suggests that § 10 (b)(3) can sustain a literal reading. For while it purports on its face to suspend the writ of habeas corpus as a vehicle for reviewing a criminal conviction under the Act, everyone agrees that such was not its intent. Examples are legion where literalness in statutory language is out of harmony either with constitutional requirements, United States v. Rumely, 345 U. S. 41, or with an Act taken as an organic whole. Clark v. Uebersee Finanz-Korp., 332 U. S. 480, 488-489. We think § 10 (b) (3) and § 6 (g) are another illustration; and the Solicitor General agrees. Since the exemption granted divinity students is plain and unequivocal and in no way contested here, and since the scope of the statutory delinquency concept is not broad enough to sustain a revocation of what Congress has granted as a statutory right, or sufficiently buttressed by legislative standards, we conclude that pre-induction judicial review is not precluded in cases of this type. We accordingly reverse the judgment and remand the case to the District Court where petitioner must have the opportunity to prove the facts alleged and also to demonstrate that he meets the jurisdictional requirements of 28 U. S. C. § 1331. Reversed. Section 6 (g) reads as follows: “Regular or duly ordained ministers of religion, as defined in this title, and students preparing for the ministry under the direction of recognized churches or religious organizations, who are satisfactorily pursuing full-time courses of instruction in recognized theological or divinity schools, or who are satisfactorily pursuing full-time courses of instruction leading to their entrance into recognized theological or divinity schools in which they have been pre-enrolled, shall be exempt from training and service (but not from registration) under this title.” Section 1617.1 of the Selective Service System Regulations requires a registrant to have the certificate in his personal possession at all times (32 CFR § 1617.1), and § 1642.4, 32 CFR § 1642.4 (a), provides that whenever a registrant fails" }, { "docid": "2778595", "title": "", "text": "287 F.Supp. 561 (S.D.N.Y.1968) aff. 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 511 (1969). . See 32 C.F.R. § 1617.1 and 32 C.F.R. § 1642.4. These delinquency regulations were wholly negated in a post-induction suit. Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970). . 50 U.S.C.A.App. § 456(g) provides in pertinent part: “Regular or duly ordained ministers of religion, as defined in this title, * * * and students preparing for the ministry under the direction of recognized churches or religious organizations, * * * shall be exempt from training and service (but not from registration) under this title.” (emphasis supplied) . The applicable part of 50 U.S.C.A.App. § 456(h) (1) covering student deferments provides: “Except as otherwise provided in this paragraph, the President shall, under such rules and regulations as he may prescribe, provide for the deferment from training and service in the Armed Forces of persons satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution of learning and .who request such deferment.” (emphasis supplied) . The rationale of these decisions is epitomized in these brief extracts : Oestereieh (Per Mr. Justice Douglas) : “To hold that a person deprived of his statutory exemption in such a blatantly Imcless manner must either be inducted and raise his protest through habeas corpus or defy induction and defend his refusal in a criminal prosecution is to construe the Act with unnecessary harshness. As the Solicitor General suggests, such literalness does violence to the clear mandate of § 6(g) governing the \"'exemption. Our construction leaves § 10(b) (S) •unimpaired in the normal operations of the Act. “Since the exemption granted divinity students is plain and unequivocal and in no way contested here,7 and since the scope of the statutory delinquency concept is not broad enough to sustain a revocation of what Congress has granted as a statutory right, or sufficiently buttressed by legislative standards, we conclude that preinduction judicial review is not precluded in cases of this type.” (emphasis added) 7. We would have a somewhat different problem were the" }, { "docid": "12897284", "title": "", "text": "before the local board and asked to be reclassified II-S. This request was based on the fact that on June 20 he had been admitted to the fall term at the Northwest Kansas Area Vocational-Technical School. The board refused to grant a II-S deferment for that type of study and appellant appealed. The board of appeals also refused to grant a II-S deferment for pursuing a course of study at the Vocational-Technical School and in January, 1970, Evans brought this suit. In essence appellant argues that he has a statutory right to a II-S classification under 50 U.S.C.A. App. § 456 (h) (1); that he has been classified I-A because of an act of delinquency; that his induction has been accelerated; and that there is unequal and inconsistent enforcement of the Selective Service Act of 1967 by the local boards in Kansas regarding students at vocational-technical schools. As a preliminary matter we note that all pre-induction judicial review as to a registrant’s classification is prohibited by 50 U.S.C.A. App. § 460(b) (3). A very narrow exception to that statute has, however, been judicially carved out in Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402, (1968) and Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970). Appellant recognizes the jurisdictional impediment facing a full hearing on the merits and thereby contends that his situation is sufficiently identical to Oestereich and Breen to permit our review. In Oestereich, the plaintiff-appellant was enrolled in theology school and was exempted from military service under a IV-D classification. After surrendering his draft card to protest the Vietnam conflict, his local draft board reclassified him I-A and declared him delinquent. An unsuccessful appeal was taken after which Oestereich brought suit in federal court to restrain his induction. The thesis of the Supreme Court’s opinion was that petitioner was assumed to be entitled to the IV-D statutory exemption. Highly summarized, the holding of that case was that unless a registrant is deprived of a statutory exemption, or deferment," }, { "docid": "5617139", "title": "", "text": "participation in war in any form: Provided, That such review shall go to the question of jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant.” 50 U.S.C.A. App. § 460(b) (3) (1968). As interpreted, the constitutionality of this provision has been upheld. Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968). It has long been recognized that Congress has a legitimate interest in protecting from litigious delays and interruptions a governmental activity so inextricably intertwined with national security as the procurement and training of military personnel. See, e. g. Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305 (1944). In interpreting section 10(b) (3) of the Act, however, the Supreme Court has held that a literal interpretation of the provision was not justified, in Oestereich v. Selective Serv-Bd., 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968). A literal reading would, in the first instance, suspend the constitutionally protected writ of habeas corpus. 393 U.S. at 238, 89 S.Ct. 414. The Court also concluded that Congress did not intend to preclude pre-induction judicial review in the special circumstances presented by Oestereich and Breen v. Selective Serv. Bd., 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970). In Oestereich, a divinity student who was unquestionably exempted by statute from eligibility for induction, was nonetheless reclassified I-A on the authority of the now-defunct delinquency regulations for having turned in his draft card in protest of the Vietnam War; Oester-eich sought a permanent injunction prohibiting his induction. His complaint was dismissed by the district court for lack of jurisdiction under authority of section 10(b) (3), and the United States Court of Appeals for the Tenth Circuit affirmed. The Supreme Court reversed, holding that pre-induction review was not precluded where the action of the local board was “blatently lawless” and beyond its statutory authority. Breen reaffirms the principle of Oestereich where a registrant had a statutory deferment rather than a statutory exemption and the delinquency regulations were" }, { "docid": "11527115", "title": "", "text": "Act (50 U.S.C. [App.] § 460(b) (3)) this Court has no jurisdiction to judicially review the classification or processing of the plaintiff by his local board except as a defense to a criminal prosecution instituted under the said Act. * * *” On this appeal appellant relies primarily on Oestereich v. Selective Service System, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), and Breen v. Selective Service Local Board No. 16, 396 U. S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970), which were decided after the ruling by the district court. Appellant contends that the two decisions compel the reversal of the order of dismissal and a remand of the cause to the district court for further proceedings. We disagree and affirm the order of the district court. “No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title [section 462 of this Appendix], after the registrant has responded either affirmatively or negatively to an order to report for induction, * *, Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant.” in Oestereich, the petitioner was enrolled as a student at a theological school preparing for the ministry, and was accordingly classified as IV-D by his local Board. He returned his registration certificate to the Government “for the sole purpose of expressing dissent from the participation by the United States in the war in Vietnam.” Shortly thereafter his Board declared him delinquent (1) for failure to have the registration certificate in his possession, and (2) for failure to provide the Board with notice of his local status. The Board thereupon changed his IV-D classification to I-A. He took an administrative appeal and lost, and was ordered to report for induction. At that point be brought suit to restrain his induction. Petitioner’s complaint was" }, { "docid": "22676508", "title": "", "text": "not precluded in cases of this type. We accordingly reverse the judgment and remand the case to the District Court where petitioner must have the opportunity to prove the facts alleged and also to demonstrate that he meets the jurisdictional requirements of 28 U. S. C. § 1331. Reversed. Section 6 (g) reads as follows: “Regular or duly ordained ministers of religion, as defined in this title, and students preparing for the ministry under the direction of recognized churches or religious organizations, who are satisfactorily pursuing full-time courses of instruction in recognized theological or divinity schools, or who are satisfactorily pursuing full-time courses of instruction leading to their entrance into recognized theological or divinity schools in which they have been pre-enrolled, shall be exempt from training and service (but not from registration) under this title.” Section 1617.1 of the Selective Service System Regulations requires a registrant to have the certificate in his personal possession at all times (32 CFR § 1617.1), and § 1642.4, 32 CFR § 1642.4 (a), provides that whenever a registrant fails to perform “any duty” required of him (apart from the duty to obey an order to report for induction) the Board may declare him to be “a delinquent.” The United States admits for purposes of the present proceeding by its motion to dismiss that petitioner satisfies the requirements of the exemption provided by § 6 (g). Section 10 (b) (3) reads in pertinent part as follows: “No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to" }, { "docid": "12023352", "title": "", "text": "error, but we believe that what .has been said fairly covers all of his material contentions. We find no reversible error in the record and the judgment is therefore Affirmed. . “§ 456. Deferments and exemptions from training and service. ****** “(g) Regular or duly ordained ministers of religion, as defined in this title (sections 451-454 and 455 — 471 of this Appendix), and students preparing for the ministry under the direction of recognized churches or religious organizations, who are satisfactorily pursuing full-time courses of instruction in recognized theological or divinity schools, or who are satisfactorily pursuing full-time courses of instruction leading to their entrance into recognized theological or divinity schools in which they have been pre-enrolled, shall be exempt from training and service (but not from registration) under this title (said sections) .” “Section 466. Definitions ****** “(g) (2) The term ‘regular minister of religion’ means one who as his customary vocation preaches and teaches the principles of religion of a church, a religious sect, or organization of which he is a member, without having been formally ordained as a minister of religion, and who is recognized by such church, sect, or organization as a regular minister. “(3) The term ‘regular or duly ordained minister of religion’ does not include a person who irregularly or incidentally preaches and teaches the principles of religion of a church, religious sect, or organization and does not include any person who may have been duly ordained a minister in accordance with the ceremonial, rite, or discipline of a church, religious sect or organization, but who does not regularly, as a vocation, teach and preach the principles of religion and administer the ordinances of public worship as embodied in the creed or principles of his church, sect, or organization.” . “§ 460. Selective Service System— « « * “(b) (3) * * * Such local boards, or separate panels thereof each consisting of three or more members, shall, under rules and regulations prescribed by the President, have the power within the respective jurisdictions of such local boards to hear and determine, subject to the" }, { "docid": "4520316", "title": "", "text": "finally superseded the action of the local board in classifying him, Tyrrell v. United States, supra, 200 F.2d at page 11, and no claim is made of unfairness on the part of the appeal board. Parkhurst’s remaining contention is that the district attorney was guilty of misconduct in that during the course of his argument he accused defense counsel of appealing to anti-Catholic prejudice and employed other extravagant and inflammatory language. As already pointed out, the only issue submitted for the jury’s determination was whether or not the defendant had knowingly refused to submit to induction upon being ordered to do so. This instruction, as we have already indicated, was proper. Accordingly, since Parkhurst admitted that he had knowingly and willfully refused to submit to induction, a verdict of guilty was the only possible one' that could be returned. Thus, assuming misconduct on the part of the district attorney, the misconduct could not have resulted in prejudice to the appellant. Finding no error in either record, the judgments of conviction are affirmed. . Part 1622.43(3) of Selectivo Service regula lions reads in pertinent portion as follows : “In Class IV — D shall be placed any registrant * * * who is a student preparing for the ministry under the direction of a recognized church or religious organization and who is satisfactorily pursuing a full-time course of instruction in a recognized theological or divinity school; * * * ” . The selective service file of each of the appellants was introduced in evidence and was examined by the trial court. . In that ease, 200 F.2d at page 13 of the. opinion, the court made the further observation: “A careful study of the record in this appeal indicates that the appellant is contending a right to .the IV— D classification as a student minister because he and his church consider him entitled thereto under their interpretation of the precepts and canons of registrant’s church membership and his ranch work in Oregon. Such a broad claim of exemption is not compatible with the Congressional intent manifested in Section 456(a) of the." }, { "docid": "15528172", "title": "", "text": "Defendant argues that we lack jurisdiction because it is impossible to assign a monetary value to this kind of case and petitioner, therefore, cannot demonstrate the requisite jurisdictional amount. Were we to accept defendant’s argument, federal courts would never have jurisdiction over pre-induction cases, yet the Supreme Court and the Second Circuit have decided such cases thus implicitly recognizing jurisdiction. The jurisdictional amount requirement is intended to give the United States district courts jurisdiction in all “substantial controversies where other elements of Federal jurisdiction are present.” The controversy here concerning petitioner’s alleged “blatantly lawless” draft classification and eventual induction into the armed forces is, to be sure, a substantial controversy, and, with an appropriate allegation coupled with judicial notice of the pecuniary rewards of a college education, we can assume, as the Supreme Court did in Oestereich v. Selective Service System Local Bd. No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), that the amount involved exceeds $10,000. We turn, now, to the operative facts. Petitioner is a full-time student at the University of Bridgeport, having commenced his junior year on September 23, 1968. He expects to receive his bachelor’s degree in June 1970. Until December 12, 1969, the draft board classified petitioner as II-S, the usual student deferment classification granted to registrants who are “satisfactorily pursuing a full-time course of instruction” at a college or university. Unfortunately, petitioner fell behind his class. He thereby lost his right to be continued in II-S because he was not “satisfactorily pursuing a full-time course of instruction” within the meaning of § 6(h) (1) of the Act. Consequently, on December 12, 1968, the draft board reclassified him I-A, that is, available for military service. He appealed the reclassification, but it was upheld by the Appeals Board. On June 10, 1969, the draft board ordered petitioner to report for induction on July 9, 1969. Petitioner did not, however, receive the notification until late in July. Earlier, on July 3, 1969, he had applied for a I-S(C) classification and had requested a personal appearance, but four days later, on July 7, 1969," }, { "docid": "12897291", "title": "", "text": "on the merits. Affirmed. . Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968). . The II-S deferment is granted by 50 U.S.C.A. App. § 456(h) (1) : “Except as otherwise provided in this paragraph, the President shall, under such rules and regulations as he may prescribe, provide for the deferment from training and service in the Armed Forces of persons satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution of learning and who request such deferment.” . “No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title [section 462 of this Appendix], after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant.” . Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 238, n. 7, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968). . We use this term because of the wording of the statute. . The petitioner was seeking a conscientious objector classification under 50 U.S. C.A. App. § 456 (j) which provides that such exemption may be granted if the “claim is sustained by the local board # * * » LEWIS, Circuit Judge (concurring). I fully concur. However, I would hesitate to do so had the Supreme Court given affirmative judicial approval in Breen to that petitioner’s right to a student deferment because of his attendance in a private specialty music school. Although Breen had been given a II-S student classification by his local board that fact would appear to be accepted by the High Court only as" }, { "docid": "4061934", "title": "", "text": "PER CURIAM: Bray appeals from a conviction for refusal to submit to induction into the armed forces, in violation of 50 U.S.C. App. § 462. The issue presented on this appeal is whether Bray’s local draft board acted contrary to Selective Service Regulations in refusing to reopen his I-A classification for the purpose of considering his claim to a I-S deferment. We conclude that Bray’s local board acted improperly, and we reverse. In September, 1968, Bray enrolled at the Green River Community College for the fall quarter of the 1968-1969 academic year. He did not enroll for the winter quarter. On December 19, 1968, Bray’s local board classified him I-A. On February 21, 1969, the Registrar of Green River Community College mailed Bray’s local board an SSS Form 109, showing that Bray had been accepted in a full-time course of instruction for the spring quarter, 1969, to commence on or about March 28, 1969. On March 17, 1969, Bray was ordered to report for induction on April 16, 1969. On April 11, 1969, Bray wrote his local board, advising that he was then engaged in a full-time course of instruction pursuant to his earlier enrollment. Bray reported to his induction center on April 16 but refused to take the symbolic step forward. The outcome of this case is controlled by 32 C.F.R. § 1625.3(b), founded upon 50 U.S.C. App. § 456(i), which provides: “The local board shall reopen and consider anew the classification of a registrant to whom it has mailed an Order to Report for Induction (SSS Form No. 252) whenever facts are presented to the local board which establish the registrant’s eligibility for classification into Class I-S because he is satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution of learning.” 32 C.F.R. § 1622.15(b), founded upon 50 U.S.C. App. § 456(i), sets forth the prerequisites to eligibility for I-S classification. It provides in relevant part: “In Class I-S shall be placed any regis trant who while satisfactorily pursuing a full-time course of instruction at a college, university or similar institution of learning" }, { "docid": "2778594", "title": "", "text": "with a warrant on the criminal charges now pending as a result of his failure to report for induction. Because we reach the result we do, it is not necessary for us to resolve the difficult question of his entitlement to secure a form of judicial relief which would free him from the pending criminal charges. Compare Molinaro v. United States, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970). Affirmed. . 50 U.S.C.A.App. § 460(b) (3). The pertinent part of the text is quoted on page 4, infra. . See Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir. 1948), cert. denied 335 U.S. 887, 69 S.Ct. 236, 93 L.Ed. 425 (1948). . Congress took note of this post-induction habeas corpus right in enacting the Military Selective Service Act of 1967. See S.Rep. No. 209, 90th Cong. 1st Sess., 10. . In a one-sentence Per Curiam order citing only Clark v. Gabriel, the court affirmed the action of a three-judge district court in dismissing a preinduction review case in Boyd v. Clark, 287 F.Supp. 561 (S.D.N.Y.1968) aff. 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 511 (1969). . See 32 C.F.R. § 1617.1 and 32 C.F.R. § 1642.4. These delinquency regulations were wholly negated in a post-induction suit. Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970). . 50 U.S.C.A.App. § 456(g) provides in pertinent part: “Regular or duly ordained ministers of religion, as defined in this title, * * * and students preparing for the ministry under the direction of recognized churches or religious organizations, * * * shall be exempt from training and service (but not from registration) under this title.” (emphasis supplied) . The applicable part of 50 U.S.C.A.App. § 456(h) (1) covering student deferments provides: “Except as otherwise provided in this paragraph, the President shall, under such rules and regulations as he may prescribe, provide for the deferment from training and service in the Armed Forces of persons satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution of learning and .who request such" }, { "docid": "11985991", "title": "", "text": "the arguments made there that the entire procedure was unconstitutional “punishment.” Id. 393 U.S. at 244, n. 6, 89 S.Ct. at 420. Therefore, there can be no doubt that the basic question that plaintiff seeks to raise — whether he was ordered inducted by an illegal procedure- — ■ is substantial, even though he has not yet been able to convince a court that it should decide the issue. The precise question before us is whether plaintiff is now entitled to such a judicial forum without making the harsh and risky choice of defying induction (and inviting criminal prosecution) or of submitting to induction and attempting to obtain habeas corpus. In Oestereich, the Court construed section 10(b) (3) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 460(b) (3), to relieve the registrant of that dilemma; in Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (U.S. Dec. 16, 1968), it did not. As an inferior federal court, we must attempt to follow the teaching of these cases, as my brothers point out. However, doing so leads me to a contrary result. It is true that Oestereich involved an exemption for divinity students, which the local board “blatantly” disregarded, while here plaintiff relies on a deferment for undergraduates. But that deferment is quite plain in the statute; section 6(h) (1) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 456(h) (1), provides: Except as otherwise provided in this paragraph, the President shall, under such rules and regulations as he may prescribe, provide for the deferment from training and service in the Armed Forces of persons satisfactori ly pursuing a full-time course of instruction at a college, university, or similar institution of learning and who request such deferment. A deferment granted to any person under authority of the preceding sentence shall continue until such person completes the requirements for his baccalaureate degree, fails to pursue satisfactorily a full-time course of in-, struction, or attains the twenty-fourth anniversary of the date of his birth, whichever first occurs. Student deferments provided for under this" }, { "docid": "11224205", "title": "", "text": "this case. The amended complaint alleges that the matter in controversy exceeds the value of $10,000 exclusive of interest and costs, and the Government does not contest this contention. Section 10(b) (3) of the Selective Service Act, as° amended, 50 App.U.S. Code § 460(b) (3) provides in pertinent part: No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title * * * after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President, only when there is no basis in fact for the classification assigned to such registrant. The statute has been uniformly interpreted to require dismissal for lack of jurisdiction of pre-induction actions similar to the one at bar. Oestereich v. Selective Service System, Local Board No. 11, 390 F.2d 100, Feb. 21, 1968, pending on petition for certiorari, No. 1246; Breen v. Selective Service Board, 284 F.Supp. 749 (D.Conn. April 2, 1968); Moskowitz v. Kindt, 273 F.Supp. 646 (E.D.Pa.1967). However, it is important to note the candid language of Solicitor General Griswold in his brief filed in Oesteréieh, supra, wherein it is stated: “In this case, petitioner’s exemption from military service and training is one which has been granted to him by Act of Congress. Section 456(g) specifically provides that— students preparing for the ministry under the direction of recognized churches or religious organizations, who are satisfactorily pursuing full-time courses of instruction in recognized theological or divinity schools * * * shall be exempt from training and service (but not from registration) under this title. Petitioner is a full-time student in good standing at the Andover Newton Theological School, which is a ‘recognized theological or divinity school.’ Thus, he is exempt by the" }, { "docid": "23504751", "title": "", "text": "be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under Section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction, * # * ” Although Section 10(b) (3) thus appears to deny all preinduction judicial review, the Supreme Court has held that its command cannot be taken literally so as to preclude review of draft board actions which are outside the statutory scheme or involve a capricious violation of a statutory mandate. Oestereich v. Selective Service Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968); cf. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946). The Oestereich case involved an arbitrary revocation of an exemption from military service held by a theological student preparing for the ministry. The Supreme Court concluded that the IV-D divinity student classification was mandated by the clear and unambiguous terms of the Act and that the local board thus acted improperly and without statutory authority in removing the mandatory IV-D classification. The Court held that pre-induction judicial review must be allowed where there exists a clear statutory grant of a classification, the decision that a registrant fits that classification neither involves the exercise of discretion or judgment nor requires resolution of complex factual issues, and the local board’s action denying a requested classification contravenes a clear statutory command. 393 U.S. at 238, 89 S.Ct. 414. Acknowledging that the literal language of Section 10(b) (3) would prevent Oestereich from obtaining judicial redress prior to. induction, the Court refused “to construe the Act with unnecessary harshness” and held that where the statutory grant of a classification “is plain and unequivocal * * * pre-induction judicial review is not precluded * * 393 U.S. at 238-239, 89 S.Ct. at 417. Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968), decided the same day as the Oestereich case, further clarified the role which the exercise of" }, { "docid": "11985982", "title": "", "text": "and denied Breen’s. After the decision of the district court, Breen’s administrative appeal was denied and he was ordered to report for induction, but the order was stayed pending the determination of this appeal. When the appeal reached us in September, we deferred decision because the Supreme Court had set for early argument Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402, which also involved the applicability and validity of the amendment to § 10(b) (3) although in a somewhat different context. We now have the benefit of the Court’s decisions in Oestereich, 393 U.S. 233, 89 S.Ct. 414 (1968), holding the amendment inapplicable to a claim by an exempt theological student that the delinquency regulations could not be applied to him, and in Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418 (1968), holding the amendment valid and applicable to the rejection of a claim of conscientious objection. While neither decision reads precisely on the issue here tendered, applying their teaching as best we can, we affirm the judgment of the district court. Oestereich, a student at a theological school preparing for the ministry, who had been declared delinquent for having turned in his registration certificate, was entitled under § 6(g) to an exemption from military service and not merely to a deferment of his obligation. The element critical to the holding that the amendment to § 10(b) (3) was inapplicable in his case was the Court’s view that: Once a person registers and qualifies for a statutory exemption, we find no legislative authority to deprive him of that exemption because of conduct or activities unrelated to the merits of granting or continuing that exemption. Since the Board’s action in depriving a divinity student of the exemption which was his “statutory right” was therefore “blatantly lawless” and “involve[d] a clear departure by the Board from its statutory mandate,” to read the statute as forcing Oestereich to choose between induction and a criminal prosecution before he could vindicate his rights would be “to construe the Act with unnecessary" }, { "docid": "11224206", "title": "", "text": "jurisdiction of pre-induction actions similar to the one at bar. Oestereich v. Selective Service System, Local Board No. 11, 390 F.2d 100, Feb. 21, 1968, pending on petition for certiorari, No. 1246; Breen v. Selective Service Board, 284 F.Supp. 749 (D.Conn. April 2, 1968); Moskowitz v. Kindt, 273 F.Supp. 646 (E.D.Pa.1967). However, it is important to note the candid language of Solicitor General Griswold in his brief filed in Oesteréieh, supra, wherein it is stated: “In this case, petitioner’s exemption from military service and training is one which has been granted to him by Act of Congress. Section 456(g) specifically provides that— students preparing for the ministry under the direction of recognized churches or religious organizations, who are satisfactorily pursuing full-time courses of instruction in recognized theological or divinity schools * * * shall be exempt from training and service (but not from registration) under this title. Petitioner is a full-time student in good standing at the Andover Newton Theological School, which is a ‘recognized theological or divinity school.’ Thus, he is exempt by the terms of the statute from ‘training and service’ under the Selective Service Act. What Selective Service System Local Board No. 11 has done here is to terminate, by administrative action, the exemption which has been granted by statute. If that action was contrary to the express terms of the Act of Congress granting the exemption, this is obviously relevant in considering the application of the procedural provision on which the government has relied in this case. This issue does not necessarily involve the constitutional validity of the provision of Public Law 90-40 relied on by the courts below. That statute forbids ‘judicial review * * * of the classification or processing of any registrant by local boards,’ except in defense to a criminal prosecution. It is possible to construe this language as applicable to the generality of situations where the local board has applied its judgment, but to exclude purported action of a board which is in fact contrary to an exemption which has been expressly granted by statute. Such a construction is not only" }, { "docid": "12897285", "title": "", "text": "exception to that statute has, however, been judicially carved out in Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402, (1968) and Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970). Appellant recognizes the jurisdictional impediment facing a full hearing on the merits and thereby contends that his situation is sufficiently identical to Oestereich and Breen to permit our review. In Oestereich, the plaintiff-appellant was enrolled in theology school and was exempted from military service under a IV-D classification. After surrendering his draft card to protest the Vietnam conflict, his local draft board reclassified him I-A and declared him delinquent. An unsuccessful appeal was taken after which Oestereich brought suit in federal court to restrain his induction. The thesis of the Supreme Court’s opinion was that petitioner was assumed to be entitled to the IV-D statutory exemption. Highly summarized, the holding of that case was that unless a registrant is deprived of a statutory exemption, or deferment, in a “blatantly lawless manner,” i. e., where it is “plain on the record and on the face of the Act that an exemption [or deferment] had been granted * * * ” but the registrant is nonetheless declared delinquent for unrelated reasons, the proscription of section 460(b) (3) applies and pre-induction review is prohibited. In Oestereich the exemption granted to divinity students by the Act was plain; the petitioner was clearly a divinity student entitled to such exemption; and the local board was without statutory authority to revoke the classification and declare Oestereich delinquent. In those circumstances pre-induction review is not barred by 50 U.S.C.A. App. § 460(b) (3). Breen had a II-S classification as a student at a Boston school of music. He too surrendered his draft card in protest of the Vietnam war and was thereafter declared delinquent and reclassified I-A. While an administrative appeal was pending, Breen instituted a suit in federal court to enjoin his induction. The Supreme Court ultimately applied Oestereich, allowing pre-induction review, stating that under the Act" }, { "docid": "12023351", "title": "", "text": "insists that that letter was not discovered until after the trial and he offers in this Court affidavits of the appellant and of the appellant’s only sister-in-law that the statements contained in the letter were false. His excuse for not having offered this evidence on his trial in the District Court is that his attorney was shown the file for only .a few minutes and did not have time to properly acquaint himself with its contents. The record shows that, upon the trial, the District Attorney stated, without denial from defendant’s counsel, that “Counsel had opportunity to examine the file”, and that the Court further stated, “All right. Mr. Anderton, that file is available to you there. You can use any part of it that you want.” No complaint was made at the trial of being allowed insufficient time to examine the file and no request was made for postponement or for the allowance of further time. That complaint cannot be considered for the first time on appeal. Appellant has made some 38 specifications of error, but we believe that what .has been said fairly covers all of his material contentions. We find no reversible error in the record and the judgment is therefore Affirmed. . “§ 456. Deferments and exemptions from training and service. ****** “(g) Regular or duly ordained ministers of religion, as defined in this title (sections 451-454 and 455 — 471 of this Appendix), and students preparing for the ministry under the direction of recognized churches or religious organizations, who are satisfactorily pursuing full-time courses of instruction in recognized theological or divinity schools, or who are satisfactorily pursuing full-time courses of instruction leading to their entrance into recognized theological or divinity schools in which they have been pre-enrolled, shall be exempt from training and service (but not from registration) under this title (said sections) .” “Section 466. Definitions ****** “(g) (2) The term ‘regular minister of religion’ means one who as his customary vocation preaches and teaches the principles of religion of a church, a religious sect, or organization of which he is a member, without" }, { "docid": "1562006", "title": "", "text": "393 U.S. 256, 258, 89 S.Ct. 424, 426, 21 L.Ed.2d 418) section 10(b) (3) does not apply. Oestereich v. Selective Service System Local Board No. 11, 1968, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402. We see no distinction between the Director’s unlawful removal of a statutorily granted exemption, Oestereich, supra, and equally unlawful refusal to grant a statutorily required deferment. See Kimball v. Selective Service Local Board No. 15, S.D.N.Y., 1968, 283 F.Supp. 606, 608. The single question to be decided, whether it be termed jurisdictional or substantive, is whether the statute mandated, or merely permitted, the deferment. Plaintiff, a second year law student in good academic standing, when called for induction in February 1969, applied for a I-S deferment. On refusal, he sought mandamus in the district court, or a declaratory judgment of invalidity of the memorandum authorizing his immediate induction, asserting it to be contrary to section 6(i) (2) of the Act, 50 App. U.S.C. § 456(i) (2). The defendants are the Director of Selective Service and the members of the appropriate local board. The district court rejected plaintiff’s contentions, dismissed the complaint, and denied a stay pending appeal. Plaintiff applied to this court and we granted a brief stay. We consider at this point whether the stay should remain in effect until the defendants have an opportunity to file a more comprehensive brief and present oral argument, if they are so minded. Section 6(i) (2), which appeared in its present form in the Universal Military Training and Service Act of 1951, hereinafter the 1951 Act, reads as follows. “Any person who while satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution is ordered to report for induction under this title, shall, upon the facts being presented to the local board, be deferred (A) until the end of such academic year, or (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier: Provided, That any person who has heretofore had his induction postponed under the provisions of section 6(i) (2) of the Selective Service Act of" } ]

[ { "docid": "23189066", "title": "", "text": "not the sentence, and is cognizable in habeas corpus. We do not dismiss petitioner’s action here only upon the failure to allege a justiciable case under § 2255. Petitioner’s first § 2255 motion in Arkansas was filed pro se, and we will liberally review the facts alleged to determine whether there are any jurisdictional grounds for the District Court to hear his claims. We look to the “essence of his complaint and do so, without controlling reference to the label or title of his pleadings, in order that we may determine whether the court had jurisdiction under any theory which might afford relief.” Booker v. Arkansas, 380 F.2d 240, 242 (8th Cir. 1967). If petitioner’s § 2255 motion is construed as a federal habeas corpus action, the District Court in Arkansas would still lack jurisdiction, the petitioner being confined in Indiana. The Supreme Court in a different context has recently construed the jurisdictional requirements of federal habeas corpus under 28 U.S.C. § 2241(a). Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). Braden reversed the rigid rule of Ahrens v. Clark, supra, that required the presence of the defendant and his custodian for in personam jurisdiction of a federal habeas corpus action. Braden does not require that the habeas corpus plaintiff be physically present within the district in which the action is filed; however, it still at least requires that the “court issuing the writ have jurisdiction over the custodian.” Braden, supra at 495, 93 S.Ct. at 1130. Although Braden discusses the convenience of the forum, a venue consideration, the minimum jurisdictional requisite of the presence of the custodian within the territorial confines of the district court must be satisfied before venue considerations are balanced. In this ease, no custodian of petitioner is within the confines of the Eastern District of Arkansas. The warden of the United States Penitentiary in Terre Haute, Indiana, can be called petitioner’s immediate custodian, and the Board of Parole, located in Washington, D. C., can be called another custodian due to its procedures in detaining petitioner. As of" } ]

[ { "docid": "22129711", "title": "", "text": "had not yet begun to serve. And it also enabled a petitioner held in one State to attack a detainer lodged against him by another State. In such a case, the State holding the prisoner in immediate confinement acts as agent for the demanding State, and the custodian State is presumably indifferent to the resolution of the prisoner’s attack on the detainer. Here, for example, the petitioner is confined in Alabama, but his dispute is with the Commonwealth of Kentucky, not the State of Alabama. Under these circumstances, it would serve no useful purpose to apply the Ahrens rule and require that the action be brought in Alabama.” 410 U. S., at 498-499 (citations and footnotes omitted; emphases added). This cannot conceivably be construed as an overturning of the Ahrens rule in other circumstances. See also Braden, supra, at 499-500 (noting that Ahrens does not establish “an inflexible jurisdictional rule dictating the choice of an inconvenient forum even in a class of cases which could not have been foreseen at the time of that decision” (emphasis added)). Thus, Braden stands for the proposition, and only the proposition, that where a petitioner is in custody in multiple jurisdictions within the United States, he may seek a writ of ha-beas corpus in a jurisdiction in which he suffers legal confinement, though not physical confinement, if his challenge is to that legal confinement. Outside that class of cases, Braden did not question the general rule of Ahrens (much less that of Eisentrager). Where, as here, present physical custody is at issue, Braden is inapposite, and Eisen-trager unquestionably controls. The considerations of forum convenience that drove the analysis in Braden do not call into question Eisentrager’s holding. The Braden opinion is littered with venue reasoning of the following sort: “The expense and risk of transporting the petitioner to the Western District of Kentucky, should his presence at a hearing prove necessary, would in all likelihood be outweighed by the difficulties of transporting records and witnesses from Kentucky to the district where petitioner is confined.” 410 U. S., at 494. Of course nothing could be" }, { "docid": "15526154", "title": "", "text": "reasoning that in enforcing a Kentucky detainer, the Alabama warden was acting simply as the agent of the state of Kentucky, which was the real custodian. The Court said: Read literally, the language of § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian. So long as the custodian can be reached by service of process, the court can issue a writ “within its jurisdiction” requiring that the prisoner be brought before the court for a hearing on his claim, or requiring that he be released outright from custody, even if the prisoner himself is confined outside the court’s territorial jurisdiction. Id. at 495, 93 S.Ct. 1123. In Henderson v. INS, 157 F.3d 106 (2d Cir.1998), the Second Circuit relied on Braden for the proposition that a New York district court would have jurisdiction to hear the § 2241 petitions of detained aliens so long as it had jurisdiction over the petitioners’ custodian through New York’s long-arm statute, N.Y. C.P.L.R. § 302(a)(1) (McKinney 1990): “A court has personal jurisdiction in a habeas' case ‘so long as the 'custodian can be reached by service of process.’ ” Id. at 122 (quoting Braden, 410 U.S. at 495, 93 S.Ct. 1123). The Henderson Court then certified to the New York Court of Appeals the question of whether New York’s long-arm statute reached the INS district director in Louisiana, where the Henderson petitioners were detained. That Court declined to answer the question, and the parties then resolved the cases amicably. See Yesil v. Reno, 175 F.3d 287 (2d Cir.1999) (per curiam). The Second Circuit has not considered the issue since. However, before Henderson, in U.S. ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir.1974), the Second Circuit had occasion to consider the reach of a district court’s jurisdiction under § 2241(a) when it construed § 2241(d), which directs that in a state having more than one district, a ha-beas petition from a prisoner in state custody pursuant to a state conviction be filed in either the district of conviction 'or the district of confinement, with the" }, { "docid": "10099790", "title": "", "text": "410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), charges were pending in Kentucky against a petitioner who was incarcerated in Alabama. Although Kentucky lodged a detainer against him, the state refused to attempt to effect his return in the near future and to grant him a trial as he had repeatedly requested. After it became evident that the state court would do nothing, the petitioner applied for federal habeas relief; he requested that Kentucky be ordered to secure his presence for trial within sixty days or dismiss the indictment. In concluding that the petitioner was “in custody” for purposes of section 2241(c)(3), the Supreme Court reasoned that the Alabama warden was acting as the agent of Kentucky in holding the petitioner pursuant to the Kentucky detainer. Braden, 410 U.S. at 489 n. 4, 93 S.Ct. at 1126 n. 4. The same analysis applied to the instant case leads to the conclusion that the federal government was acting as the agent of Louisiana when it held Dickerson pursuant to the Louisiana detainer. Accordingly, Dickerson satisfies the “in custody” requirement of section 2241(c)(3). C. The next issue we must examine is whether Dickerson has exhausted his state remedies. In discussing exhaustion in the habeas corpus context, we must distinguish between pre-trial and post-trial situations. It is only in the post-trial setting that exhaustion is mandated by statute. Compare 28 U.S.C. § 2254(b) with 28 U.S.C. § 2241(c)(3). Section 2241(c)(3), which empowers district courts to issue the writ before a judgment is rendered in a criminal proceeding, makes no reference to exhaustion. Despite the absence of an exhaustion requirement in the statutory language of section 2241(c)(3), a body of case law has developed holding that although section 2241 establishes jurisdiction in the federal courts to consider pre-trial habeas corpus petitions, federal courts should abstain from the exercise of that jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state court or by other state procedures available to the petitioner. See, e.g., Braden, 410 U.S. at 489-92, 93 S.Ct. at 1126-28; Ex" }, { "docid": "21590715", "title": "", "text": "exercise some control over the petitioner to satisfy the “in custody” requirement, see Birdsell, 834 F.2d at 921-22 (habeas petitioner who completed Alabama prison sentence and whose Alabama probation could not be revoked, was not “in custody” in Alabama); Aziz, 830 F.2d at 186 (Florida district court had subject matter jurisdiction over habeas petition brought by New York prisoner because petition attacked validity of prior Florida conviction used to enhance New York sentence). The precise issue in this case is whether Stacey, who escaped from an Alabama prison after serving only one year of a 30 year sentence, is sufficiently “in custody” in Alabama to give the district court subject matter jurisdiction over his habeas petition. Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) provides some guidance on this issue. The petitioner in Braden escaped from the custody of Kentucky officials while awaiting trial on an indictment returned by a Kentucky grand jury and remained at large until his arrest in Alabama three months later. Convicted of certain unspecified felonies in Alabama, the petitioner was sentenced to Alabama state prison, where he was confined when he filed a federal habeas corpus petition attacking the validity of the Kentucky indictment, which supported a detainer lodged against him by officials of that state. Reasoning that the Alabama warden acted as Kentucky’s agent in holding the petitioner pursuant to the Kentucky detainer, the Supreme Court concluded that the petitioner was sufficiently “in custody” in Kentucky for purposes of 28 U.S.C. § 2241(c)(1). Id. at 489 n. 4, 93 S.Ct. at 1126 n. 4. The Court explicitly declined to decide whether the petitioner would satisfy the “in custody” requirement if Kentucky had not lodged a detainer against him. Id. at 489 n. 4, 93 S.Ct. at 1126 n. 4. At oral argument, Stacey’s lawyer stated that he thought Alabama had lodged a detainer warrant against his client; the written record, however, does not support this conjecture, although the state may have lodged the detainer warrant after the record was filed. We remand for the district court" }, { "docid": "14296082", "title": "", "text": "case should be continued for 36 months until May 1978. As a result of that decision Clinkenbeard filed his section 2255 motion in district court. In Kortness, this court held that a prisoner is entitled to section 2255 relief where the sentencing judge in imposing sentence under 18 U.S.C. § 4208(a)(2) was unaware that, under the guidelines adopted by the board of parole contemporaneous with or subsequent to the imposition of the sentence, the prisoner would not receive meaningful consideration for parole at or before the one-third point of his sentence. This position was reiterated in United States v. White, 540 F.2d 409 (8th Cir. 1976). Here there has been no procedure adopted contemporaneous with or subsequent to the imposition of the sentence which changes the import of the court’s sentence. Furthermore, even if this was a case requiring reconsideration of the sentence by the district court, the court has already stated that the sentence originally imposed is proper. The due process claim related to the manner in which the sentence is being executed, as opposed to the legality of the sentence. Such a claim is properly cognizable in a habeas corpus petition under section 2241. Lee v. United States, 501 F.2d 494, 499 (8th Cir. 1974); Tanner v. Moseley, 441 F.2d 122, 124 (8th Cir. 1971); Stinson v. United States, 342 F.2d 507, 508 (8th Cir. 1965). In order for a district court to have jurisdiction to issue a writ of habeas corpus, it must have jurisdiction over petitioner’s custodian. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973); Lee v. United States, supra, 501 F.2d at 501. The petitioner is incarcerated in Minnesota. The custodian in Minnesota is not within the territorial confines of the United States District Court for the Northern District of Iowa. Therefore the minimum jurisdictional requisite is missing. The district court properly held it lacked jurisdiction to consider the due process claim. Affirmed. . The Honorable Edward J. McManus, Chief Judge, United States District Court for the Northern District of Iowa. . Subsequently, the" }, { "docid": "10099789", "title": "", "text": "to lack of jurisdiction under section 2254. We believe the court erred in resting its decision on this jurisdictional basis. Dickerson’s petition does not explicitly refer to section 2254 as the basis of the district court’s jurisdiction. Throughout his habeas proceedings, Dickerson has been pro se until this court appointed counsel to represent him in this appeal. Under the circumstances, we will construe Dickerson’s petition as seeking relief pursuant to 28 U.S.C. § 2241. Cf. Fisher v. Rose, 757 F.2d 789, 792 n. 2 (6th Cir.1985) (construing an improper section 2254 petition pursuant to section 2241 even though petitioner was represented by counsel). B. We now turn to an examination of whether Dickerson is entitled to raise his speedy trial and due process claims in a federal habeas proceeding at this time. In order to be eligible for habeas relief, a petitioner must be “in custody” and must have exhausted his available state remedies. We conclude that Dickerson is “in custody” for purposes of section 2241. In Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), charges were pending in Kentucky against a petitioner who was incarcerated in Alabama. Although Kentucky lodged a detainer against him, the state refused to attempt to effect his return in the near future and to grant him a trial as he had repeatedly requested. After it became evident that the state court would do nothing, the petitioner applied for federal habeas relief; he requested that Kentucky be ordered to secure his presence for trial within sixty days or dismiss the indictment. In concluding that the petitioner was “in custody” for purposes of section 2241(c)(3), the Supreme Court reasoned that the Alabama warden was acting as the agent of Kentucky in holding the petitioner pursuant to the Kentucky detainer. Braden, 410 U.S. at 489 n. 4, 93 S.Ct. at 1126 n. 4. The same analysis applied to the instant case leads to the conclusion that the federal government was acting as the agent of Louisiana when it held Dickerson pursuant to the Louisiana detainer. Accordingly, Dickerson" }, { "docid": "11654905", "title": "", "text": "time he did because he was not a refugee 3. Removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for being an aggravated felon 4. Removable under 8 U.S.C. § 1227(a)(4)(B) for engaging in terrorist activities On December 6, 2004 and December 7, 2004, an Immigration Judge conducted a removal hearing on all of the removal charges and on Petitioner’s application for deferral of removal under the United Nations Convention Against Torture. On December 29, 2004, the immigration judge issued a lengthy written decision sustaining all of the charges of removability, denied Petitioner’s deferral application, and ordered him removed to Turkey. Petitioner has filed an appeal of this removal decision to the BIA, where it is pending. The appeal is proceeding on a expedited basis; briefing is now complete. III. Analysis A. Jurisdiction Respondent says that the Court lacks jurisdiction over the proper respondent in this case and that venue is improper in this district. In a habeas corpus proceeding under 28 U.S.C. § 2241, the appropriate forum is governed by two factors: (1) whether the court has personal jurisdiction over petitioner’s custodian; and (2) whether petitioner satisfies traditional venue considerations. A court has personal jurisdiction “so long as the custodian can be reached by service of process.” Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973); Section 2243, of Title 28 requires the writ of habeas corpus to be directed to the “person having custody of the person detained,” 28 U.S.C. § 2243, but does not indicate who the proper custodian is. In Roman v. Ashcroft, 340 F.3d 314 (6th Cir.2003), the Court of Appeals for the Sixth Circuit held that the “immediate custodian” rule applies in immigration habeas cases. Under this rule, the Sixth Circuit held that the INS District Director for the district where a detention facility is located is the proper respondent. The Sixth Circuit explained: Pursuant to the immediate custodian rule, a prisoner filing a habeas petition should generally name the as a respondent the warden of the prison where he is confined. Similarly, a detained alien filing" }, { "docid": "13465871", "title": "", "text": "substantially on Ahrens (and indeed overruled its territorially-based jurisdictional holding); but in so doing, the Bra-den Court stated flatly that the habeas petitioners in Ahrens, although challenging a policy promulgated by the Attorney General, “could have challenged their detentions by bringing an action in the Eastern District of New York against the federal officials who confined them in that district.” 410 U.S. at 500, 93 S.Ct. at 1132. That was so even though the Ellis Island custodian obviously had nothing to do with fashioning Attorney General Clark’s determinations under the Alien Enemy Act of 1798 (which was the purported statutory basis of the deportation order at issue in the case). Braden, then, stands as clear authority for the proposition that Chat-man-Bey (and other federal prisoners who are challenging some aspect of Parole Commission policy or action) can properly bring his complaint in his local federal district court and secure a resolution of his claim in the context of habeas corpus. In short, as Braden expressly states, lawsuits aimed at a policy fashioned in Washington, D.C. need not be brought in this district. Like the petitioners in Ahrens situated on Ellis Island, the federal court of the jurisdiction where the individual is incarcerated (or otherwise in “custody”) can properly entertain the action. IV This brings us, finally, to Braden’s teaching that habeas jurisdiction is not limited to the district where the individual is incarcerated. That is to say, by virtue of Braden’s holding, it can no longer be maintained that a federal court outside the district of incarceration lacks subject matter jurisdiction over a habeas claim. Here, at long last, are the facts of Bra-den. As we alluded to before, Braden was incarcerated in Alabama pursuant to a state conviction. There was outstanding against him, however, an indictment in Kentucky on state charges there. Kentucky authorities therefore lodged a detain-er against Braden with Alabama authorities. Braden had no quarrel with his Alabama conviction, nor with the detainer itself. What he did object to was the indictment in Kentucky which underlay the de-tainer. He therefore sought to challenge the validity of the" }, { "docid": "14296083", "title": "", "text": "opposed to the legality of the sentence. Such a claim is properly cognizable in a habeas corpus petition under section 2241. Lee v. United States, 501 F.2d 494, 499 (8th Cir. 1974); Tanner v. Moseley, 441 F.2d 122, 124 (8th Cir. 1971); Stinson v. United States, 342 F.2d 507, 508 (8th Cir. 1965). In order for a district court to have jurisdiction to issue a writ of habeas corpus, it must have jurisdiction over petitioner’s custodian. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973); Lee v. United States, supra, 501 F.2d at 501. The petitioner is incarcerated in Minnesota. The custodian in Minnesota is not within the territorial confines of the United States District Court for the Northern District of Iowa. Therefore the minimum jurisdictional requisite is missing. The district court properly held it lacked jurisdiction to consider the due process claim. Affirmed. . The Honorable Edward J. McManus, Chief Judge, United States District Court for the Northern District of Iowa. . Subsequently, the board’s regulations were amended to require that all section 4208(a)(2) prisoners be given parole consideration at the one-third point of their sentences. 40 Fed.Reg. 41332 (Sept. 5, 1975), § 2.14(b). Petitioner was scheduled for such consideration in August 1976." }, { "docid": "22717339", "title": "", "text": "lodged against him by another State. In such a case, the State holding the prisoner in immediate confinement acts as agent for the demanding State, and the custodian State is presumably indifferent to the resolution of the prisoner's attack on the detainer.” Id. at 498-99, 93 S.Ct. 1123: In light of the Supreme Court's decision in Bra-den, several courts, including this court in an unpublished opinion, have held that a habeas petitioner challenging a detainer is in the custody of the state filing the detainer. See, e.g., Jones v. City of Jackson, 203 F.3d 875, 879 (5th Cir.2000) (holding that in Braden \"the Supreme Court concluded that a state placing a detainer on the petitioner who was incarcerated in another jurisdiction had 'custody' of him for habeas corpus purposes”); Higgins v. Rhode Island, No. 98-1040, 1998 WL 1085812, at *1 (1st Cir. Oct. 8, 1998) (unpublished disposition) (citing Braden for proposition that habeas petitioner was \"in custody” pursuant to the detainer); Ball v. Scott, No. 93-3345, 1994 WL 562023, at *1 (10th Cir. Oct. 13, 1994) (unpublished disposition) (\"The Court has found a prisoner serving a sentence in one state, against whom a detainer had been filed with his jailers by another state, sufficiently 'in custody’ pursuant to the detainer such that he could bring a habeas attack on the outstanding charge underlying the detainer.”). As Braden and the other cases cited above make clear, when a habeas petitioner challenges a detainer lodged by a state agency, that challenge is directed exclusively at the validity of the detainer itself; the current instance of detention is simply not implicated. See Braden, 410 U.S. at 498-99, 93 S.Ct. 1123 (holding that custodian state is merely \"indifferent” agent of demanding state). Accordingly, the key question is whether the detainer challenged arises out of process issued by state court; a petitioner’s current place of detention is irrelevant. Thus, despite the dissent’s assertion to the contrary, a federal prisoner seeking to challenge a detainer arising out of process issued by a state court must obtain a COA in order to appeal a district court order" }, { "docid": "18560118", "title": "", "text": "argument. The statute provides that “[wjrits of habe-as corpus may be granted by ... the district courts ... within their respective jurisdictions.” 28 U.S.C. § 2241(a) (1982). Originally, this language was interpreted to mean that jurisdiction was proper only in the district in which the petitioner was located, usually the district of incarceration. See Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948). Subsequently, however, the Supreme Court has held that “the language of § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian,” “even if the prisoner himself is confined outside the court’s territorial jurisdiction.” Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495, 93 S.Ct. 1123, 1130, 35 L.Ed.2d 443 (1973). In Braden, an Alabama prisoner applied to a district court in Kentucky for a writ of habeas corpus. The prisoner did not challenge the validity of his Alabama conviction. Rather, he attacked the validity of a three-year-old Kentucky indictment which was the basis for a detainer lodged against him by Kentucky officials. The Court first held that the prisoner was “in custody” in Kentucky within the meaning of 28 U.S.C. § 2241(c)(3) by virtue of the interstate de-tainer. See 410 U.S. at 488-89, 93 S.Ct. at 1126. The Court next held that since his dispute was with his Kentucky “custodians,” jurisdiction was proper in federal district court in Kentucky. See id. at 494-99, 93 S.Ct. at 1129-32. “Under these circumstances it would serve no useful purpose to apply the Ahrens rule and require that the action be brought in Alabama.” Id. at 499, 93 S.Ct. at 1132. After Braden, a prisoner may apply for a writ of habeas corpus either in the district where he is incarcerated or, if different, the district in which his custodian is located. As noted at the outset, Monk is incarcerated at Fort Leavenworth, Kansas and his custodian is the commandant of that facility. Monk concedes that under Braden, he could have brought this action in the federal district court in Kansas where both he and his custodian" }, { "docid": "319877", "title": "", "text": "North Carolina Attorney General conceded, that the North Carolina authorities had given express consideration to the Georgia and Louisiana detainers in determining petitioner’s eligibility for parole, honor-grade custody and other institutional privileges for which he would have been eligible had not the detainers been lodged against him. . 410 U.S. at 500, 93 S.Ct. 1123. . Cited approvingly in McEachern v. Henderson (5th Cir. 1973), 485 F.2d 694, 696. . Even were we to assume that the States of Georgia and Louisiana were amenable to process by service on the North Carolina warden acting as their agent for service of process, the Court’s exercise of in personam jurisdiction would still be without justification. This is so because the North Carolina warden was never served with the petition in his representative capacity as an alleged agent of the States of Georgia and Louisiana or otherwise. At a minimum, service on the immediate custodian as an agent for the demanding state would be a condition precedent to any claim under an agency theory for the exercise of in personam jurisdiction over Georgia and Louisiana. . George v. Nelson (9th Cir. 1969), 410 F.2d 1179. . 399 U.S. at 230, 90 S.Ct. at 1967 (emphasis added). . See, also, Weiss v. Blackwell, supra (310 F.Supp. at 363): “At the hearing this Court will decide if the state has made a diligent, good-faith effort to bring the petitioner to trial. Prison officials should not be called upon by the prisoners to make a determination of the reasonableness of a state’s delay. The hearing will only consider the restrictions imposed at the federal prison under the state detainer, not the underlying state criminal charges. (As to these charges, the prisoner must pursue his remedies in state court to secure a speedy trial or to reverse any conviction tainted by the passage of an unrea sonable delay in trial, before the prisoner may go Into a federal district court in that state to seek relief.)” (Emphasis in opinion). . 379 F.Supp. at 556 and 558. . See, 4 Wright & Miller, Federal Practice and Procedure, §" }, { "docid": "15526153", "title": "", "text": "requires, at a minimum, that the respondent be physically present within this District in order for the court to grant relief. (Mot. to Dismiss at 17; Respondents’ Reply in Supp. of Mot. to Dismiss Am. Pet. at 22) However, for the reasons set forth below, the government’s reading of the statute is inconsistent with governing authority, and this court may grant relief under the statute if relief is otherwise warranted. The subject phrase — “within their respective jurisdictions” — was read initially by the Supreme Court in Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948), to require that a petitioner be physically present within the geographic boundaries of the district before a petition could be heard. However, the Court did away with that requirement in Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), where it held that a prisoner confined in an Alabama state prison following a felony conviction could seek habeas corpus relief in Kentucky to attack an indictment pending there, reasoning that in enforcing a Kentucky detainer, the Alabama warden was acting simply as the agent of the state of Kentucky, which was the real custodian. The Court said: Read literally, the language of § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian. So long as the custodian can be reached by service of process, the court can issue a writ “within its jurisdiction” requiring that the prisoner be brought before the court for a hearing on his claim, or requiring that he be released outright from custody, even if the prisoner himself is confined outside the court’s territorial jurisdiction. Id. at 495, 93 S.Ct. 1123. In Henderson v. INS, 157 F.3d 106 (2d Cir.1998), the Second Circuit relied on Braden for the proposition that a New York district court would have jurisdiction to hear the § 2241 petitions of detained aliens so long as it had jurisdiction over the petitioners’ custodian through New York’s long-arm statute, N.Y. C.P.L.R. § 302(a)(1) (McKinney 1990): “A court has personal" }, { "docid": "22336762", "title": "", "text": "of process.” Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495, 499, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) (holding that a district court in Kentucky had personal jurisdiction over a ease filed by an inmate in Alabama). Section 2243 of Title 28 provides that the writ of habeas corpus “shall be directed to the person having custody of the person detained,” but does not specify who the proper custodian is. 28 U.S.C. § 2243 (1994). Historically, the question of who is “the custodian,” and therefore the appropriate respondent in a habeas suit, depends primarily on who has power over the petitioner and, as we will discuss below, on the convenience of the parties and the court. In general, courts have treated the individual with day-to-day control over the petitioner as the custodian for habeas purposes. See, e.g., Guerra v. Meese, 786 F.2d 414, 416 (D.C.Cir.1986); Billiteri v. United States Bd. of Parole, 541 F.2d 938, 948 (2d Cir.1976). This rule “is a practical one based on common sense administration of justice.” Sanders v. Bennett, 148 F.2d 19, 20 (D.C.Cir.1945). And for the great majority of habeas cases, which involve prisoners held in penal institutions, the rule made sense, and still does. The person with immediate control over the prisoner has the literal power to “produce” the body and is generally located in the same place as the petitioner, thereby simplifying venue problems. Although petitioners Yesil and Mojica are not currently confined in Louisiana, Ca-plinger, the INS District Director in New Orleans, exercises primary custody over them, since they are both seeking to be released from the detainers lodged against them by the INS at its Oakdale, Louisiana, facility. For this reason, the government contends, Caplinger is the only appropriate respondent to a habeas petition brought by either Yesil or Mojica. The government further asserts that, because District Director Caplinger does not have contacts with the State of New York that are sufficient to render him subject to the New York long-arm statute, Mojica and Yesil’s habeas petitions may not proceed in the Eastern and Southern Districts" }, { "docid": "22129710", "title": "", "text": "petitioner incarcerated in Alabama. The petitioner filed an application for a writ of habeas corpus in Kentucky, challenging an indictment that had been filed against him in that Commonwealth and naming as respondent the Kentucky court in which the proceedings were pending. This Court held that Braden was in custody because a detainer had been issued against him by Kentucky, and was being executed by Alabama, serving as an agent for Kentucky. We found that jurisdiction existed in Kentucky for Braden’s petition challenging the Kentucky detainer, notwithstanding his physical confinement in Alabama. Braden was careful to distinguish that situation from the general rule established in Ahrens. “A further, critical development since our decision in Ahrens is the emergence of new classes of prisoners who are able to petition for habeas corpus because of the adoption of a more expansive definition of the ‘custody’ requirement of the habeas statute. The overruling of McNally v. Hill, 293 U. S. 131 (1934), made it possible for prisoners in custody under one sentence to attack a sentence which they had not yet begun to serve. And it also enabled a petitioner held in one State to attack a detainer lodged against him by another State. In such a case, the State holding the prisoner in immediate confinement acts as agent for the demanding State, and the custodian State is presumably indifferent to the resolution of the prisoner’s attack on the detainer. Here, for example, the petitioner is confined in Alabama, but his dispute is with the Commonwealth of Kentucky, not the State of Alabama. Under these circumstances, it would serve no useful purpose to apply the Ahrens rule and require that the action be brought in Alabama.” 410 U. S., at 498-499 (citations and footnotes omitted; emphases added). This cannot conceivably be construed as an overturning of the Ahrens rule in other circumstances. See also Braden, supra, at 499-500 (noting that Ahrens does not establish “an inflexible jurisdictional rule dictating the choice of an inconvenient forum even in a class of cases which could not have been foreseen at the time of that decision”" }, { "docid": "18560119", "title": "", "text": "him by Kentucky officials. The Court first held that the prisoner was “in custody” in Kentucky within the meaning of 28 U.S.C. § 2241(c)(3) by virtue of the interstate de-tainer. See 410 U.S. at 488-89, 93 S.Ct. at 1126. The Court next held that since his dispute was with his Kentucky “custodians,” jurisdiction was proper in federal district court in Kentucky. See id. at 494-99, 93 S.Ct. at 1129-32. “Under these circumstances it would serve no useful purpose to apply the Ahrens rule and require that the action be brought in Alabama.” Id. at 499, 93 S.Ct. at 1132. After Braden, a prisoner may apply for a writ of habeas corpus either in the district where he is incarcerated or, if different, the district in which his custodian is located. As noted at the outset, Monk is incarcerated at Fort Leavenworth, Kansas and his custodian is the commandant of that facility. Monk concedes that under Braden, he could have brought this action in the federal district court in Kansas where both he and his custodian are located. His claim is that he is also free to bring the action in the District of Columbia because it is here that his “ultimate custodian,” the Secretary of the Navy, resides. Nothing in Braden supports this assertion and we reject it. We hold that for purposes of the federal habeas corpus statute, jurisdiction is proper only in the district in which the immediate, not the ultimate, custodian is located. Our decision today is controlled by Sanders v. Bennett, 148 F.2d 19 (D.C.Cir.1945). In Sanders, a federal prisoner, confined outside the District of Columbia, applied for a writ of habeas corpus to the district court for the District of Columbia. The district court dismissed for lack of jurisdiction. On appeal, the prisoner argued that jurisdiction was proper because he was in the “custody” of the Attorney General, an official over whom the district court had jurisdiction. Judge Arnold framed the question as “whether a court in the District of Columbia has jurisdiction to issue a writ of habeas corpus against the Attorney General of" }, { "docid": "319861", "title": "", "text": "the instant appeal, the District Court had both subject matter jurisdiction and the authority by reason of in personam jurisdiction to direct the North Carolina officials by way of affirmative injunctive relief to give no effect to the Georgia and Louisiana detainers so far as petitioner’s status as a North Carolina prisoner was concerned. We think, however, that the challenge to the validity of the underlying charges stands on a different footing for under the facts of this case, the District Court had no capacity, within its geographic boundaries, to enforce its order — a power dependent upon the valid exercise of in personam jurisdiction. At no point in its orders did the District Court indicate the circumstances under which it presumed to have acquired in personam jurisdiction of the States of Georgia and Louisiana and their prosecuting officials. In asserting “jurisdiction” over petitioner’s attack on the validity of the pending criminal charges, the District Court instead relied on Braden v. 30th Judicial Circuit Court of Ky. (1973), 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443. Braden, in stark contrast to the facts of this appeal, involved an Alabama prisoner who attacked the validity of a Kentucky detainer based on pending criminal charges by petitioning for a writ of habeas corpus in the federal district court of Kentucky, the demanding state. But the Kentucky District Court’s capacity to enforce its order was not questioned for, as the Court expressly noted, the “respondent was properly served” within the Western District of Kentucky, which was his domicile for personal jurisdiction purposes. Thus Braden dealt only with the question of the District Court’s exercise of subject matter jurisdiction as imposed by the language of the federal habeas corpus statute, 28 U.S.C. § 2241(a), requiring the petitioner to be “in custody” within the jurisdiction of the issuing court. By holding that the state detaining the petitioner in immediate confinement acted as an agent for the demanding state that filed the detainer, the Braden Court avoided the “slavish application” of the rule of Ahrens v. Clark (1948), 335 U.S. 188, 68 S.Ct. 1443, 92" }, { "docid": "22336761", "title": "", "text": "the face of statutes seeking to limit judicial jurisdiction to the fullest extent constitutionally possible—surely are. The two statutory questions before us today are clearly of this variety, and the district courts had subject matter jurisdiction to consider them. B. Personal Jurisdiction Before we turn to the merits of petitioners’ claims, however, we must address issues of personal jurisdiction. Two of the petitioners (Yesil and Mojica) have cited both the Attorney General of the United States and John B. Caplinger, the INS District Director in New Orleans, Louisiana as respondents. But the government contends that Caplinger is the only legitimate respondent for habeas purposes and further asserts that Caplinger is outside of the New York district courts’ personal jurisdiction. For reasons we discuss below, we decline at this time to decide whether the Attorney General could appropriately be cited as custodian in these cases, and we concentrate instead on the government’s contentions with respect to Caplinger. A court has personal jurisdiction in a habeas case “so long as the custodian can be reached by service of process.” Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495, 499, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) (holding that a district court in Kentucky had personal jurisdiction over a ease filed by an inmate in Alabama). Section 2243 of Title 28 provides that the writ of habeas corpus “shall be directed to the person having custody of the person detained,” but does not specify who the proper custodian is. 28 U.S.C. § 2243 (1994). Historically, the question of who is “the custodian,” and therefore the appropriate respondent in a habeas suit, depends primarily on who has power over the petitioner and, as we will discuss below, on the convenience of the parties and the court. In general, courts have treated the individual with day-to-day control over the petitioner as the custodian for habeas purposes. See, e.g., Guerra v. Meese, 786 F.2d 414, 416 (D.C.Cir.1986); Billiteri v. United States Bd. of Parole, 541 F.2d 938, 948 (2d Cir.1976). This rule “is a practical one based on common sense administration of justice.”" }, { "docid": "22947664", "title": "", "text": "Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), an inmate confined in an Alabama state prison after a felony conviction applied for habeas corpus relief in the Federal District Court for the Western District of Kentucky, seeking to attack a pending Kentucky indictment. Relying in large measure upon the liberalization of intrastate habeas effected by § 2241(d), as well as the post-Ahrens provision of 28 U.S.C. § 2243 (presence of petitioner not required when application presents only issues of law), the Court held that: So long as the custodian can be reached by service of process, the court can issue a writ “within its jurisdiction” [for purposes of § 2241 (а) ] . . ., even if the prisoner himself is confined outside the court’s territorial jurisdiction. 410 U.S. at 495, 93 S.Ct. at 1130. With respect to Braden’s claim the state of Kentucky was the real custodian, since for purposes of the detainer pursuant to the pending indictment the Alabama correctional officials acted only as agents. Thus the federal district court in Kentucky had jurisdiction to issue the writ. This straightforward reading of § 2241(a), as the Court certainly realized, was not without its effect upon the interpretation to be given § 2241(d). If the original jurisdictional grant in § 2241(a) was to be construed as coextensive with the scope of service of process, see Fed.R.Civ.P. 4(f), then a jurisdictional reading of § 2241(d) would render that subsection merely repetitious. The Braden Court recognized, further, that the 1966 amendment was motivated, at least in part, by “a desire to insure that the disputes could be resolved in the most convenient forum,” 410 U.S. at 497 n. 13, 93 S.Ct. at 1131, i. e. by considerations traditionally proper to venue. We think it clear, from both the Court’s language' and the language of § 2241(d), that it makes more sense to read this section as a provision fixing venue and aimed at problems of judicial administration whose solution lies in the balance of convenience among various courts. Cf. 83 Harv.L.Rev." }, { "docid": "22947663", "title": "", "text": "resolution of the dispute raised by a habeas petition. All the material events would usually have taken place, and all the records and witnesses were generally to be found, near the court which had originally imposed the confinement. Moreover, restriction of jurisdiction to the locus of confinement had the singular disadvantage of imposing on those district courts near detention facilities the burden of entertaining all collateral actions brought by inmates in those prisons. In an effort to rescue the courts from a calamity of their own making, Congress in 1966 enacted § 2241(d), which specified that a habeas corpus petition could also be filed in the federal district in which the court which had entered judgment and sentence was located. See S. Rep. No. 1502, 89th Cong., 2d Sess. (1966); H.R. Rep. No. 1894, 89th Cong., 2d Sess. (1966). Helpful though it was, the remedy was not complete enough to undo the damage done by Ahrens’s narrow jurisdictional interpretation of § 2241(a). The inadequacy was most convincingly demonstrated by the problem of interstate detainer. In Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), an inmate confined in an Alabama state prison after a felony conviction applied for habeas corpus relief in the Federal District Court for the Western District of Kentucky, seeking to attack a pending Kentucky indictment. Relying in large measure upon the liberalization of intrastate habeas effected by § 2241(d), as well as the post-Ahrens provision of 28 U.S.C. § 2243 (presence of petitioner not required when application presents only issues of law), the Court held that: So long as the custodian can be reached by service of process, the court can issue a writ “within its jurisdiction” [for purposes of § 2241 (а) ] . . ., even if the prisoner himself is confined outside the court’s territorial jurisdiction. 410 U.S. at 495, 93 S.Ct. at 1130. With respect to Braden’s claim the state of Kentucky was the real custodian, since for purposes of the detainer pursuant to the pending indictment the Alabama correctional officials acted only" } ]

[ { "docid": "23508988", "title": "", "text": "(3d Cir.1991) (finding waiver because “[n]owhere in the ‘Statement of the Issues Presented’ or the ‘Argument’ section of plaintiffs appellate brief are [the district court’s] conclusions questioned”). For these reasons, “we usually refrain from addressing an argument or issue not properly raised and discussed in the appellate briefing.” Forestal Guarani S.A. v. Daros Int’l, Inc., 613 F.3d 395, 403 (3d Cir.2010) (Cowen, J., dissenting). However, the rule does yield in “extraordinary circumstances.” See Simmons v. City of Phila., 947 F.2d 1042, 1065 (3d Cir.1991). Though our case law repeats the rule — waiver absent extraordinary circumstances — we have yet to flesh out the extraordinary circumstance exception. We find instructive an approach set out by one of our sister courts of appeals. In In re Kane, the First Circuit Court of Appeals acknowledged, as we do, that it lacked explicit standards for “what constitutes such extraordinary circumstances.” 254 F.3d 325, 331 (1st Cir.2001). It did, however, identify certain factors as “obvious” ones to consider: “whether there is some excuse for the 'failure to raise the issue in the opening brief; how far the opposing party would be prejudiced; and whether failing to consider the argument would lead to a miscarriage of justice or undermine confidence in the judicial system.” Id. We agree and adopt these principles. Applied to the facts of Albertson’s case, we believe the balance weighs in favor of reviewing the merits of the challenge to his supervised release conditions. With respect to the first factor, we appreciate that Albertson’s reason for failing to raise the issue in his opening brief is not compelling. As noted, his counsel stated at argument that, prior to Miller, he had not realized that a challenge to the conditions might succeed. This might be true as a subjective matter. Objectively, however, the basis for Miller already existed in a line of cases, discussed below, concerning computer-related conditions of supervised release that were imposed on child porn offenders. Thus, standing alone, the first factor does not cut against waiver. However, the second two factors do weigh against waiver. The Government would suffer no" } ]

[ { "docid": "22701704", "title": "", "text": "original complaint. Accordingly, the prison officials argue that we should dismiss Grant’s appeal for failure to comply with Rule 28(a) of the Federal Rules of Appellate Procedure. Although we liberally construe briefs of pro se litigants and apply less stringent standards to parties proceeding pro se than to parties represented by counsel, pro se parties must still brief the issues and reasonably comply with the standards of Rule 28. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994) (“[P]ro se litigants, like all other parties, must abide by the Federal Rules of Appellate. Procedure.”); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993) (“ ‘[Arguments must: be briefed to be preserved.’ ” (quoting Price, 846 F.2d at 1028)). The prison officials argue that Grant has abandoned his appeal by failing to brief any issues. This Court has considered a pro se appellant’s brief despite its technical noncompliance with the Rules of Civil Procedure when it at least argued some error on the part of the district court. See, e.g., Wilkes, 20 F.3d at 653 (considering issue even after criticizing brief for failing to cite to the record for argument that his sentence was improper because “the superseding information failed to specify the type and quantity of drug he possessed”); Price, 846 F.2d at 1028 (addressing issue even though the “only reference appellant makes to the district court’s dismissal of his lawsuit is to assert that ‘this action is not time barred’ ”); Amin, 706 F.2d at 640 n. 1 (considering brief because it “contains an assertion of trial court error”). But see Yohey, 985 F.2d at 224 (holding that plaintiff had abandoned issues because he merely “request[ed] ... the adoption of previously filed legal and factual arguments in his objections to the magistrate judge’s report and in various state court pleadings”). In this case, Grant fails to meet even this minimal requirement. Aside from the implication raised by its existence, his brief does not argue that the district court erred in any way. This Court has discretion to consider a noncompliant brief, and it has allowed pro se" }, { "docid": "4833981", "title": "", "text": "the opposing party would be prejudiced by our considering the issue; and (3) “whether failure to consider the argument would lead to a miscarriage of justice or undermine confidence in the judicial system.” Id. (quoting In re Kane, 254 F.3d 325, 331 (1st Cir.2001)). The miscarriage of justice factor is “somewhat similar to the 'plain error’ rule,” which allows appellate courts to correct an error not raised before the district court if the error affected the defendant’s substantial rights and “seriously affected] the fairness, integrity or public reputation of judicial proceedings.” Id. at 196 (quoting Gambino v. Morris, 134 F.3d 156, 169 n. 12 (3d Cir.1998) (Roth, J., concurring), and United States v. Knight, 266 F.3d 203, 207 (3d Cir.2001)). Applying these factors to Andrews’s case, we believe “the balance weighs in favor of reviewing the merits” of the general sentence issue. Id. at 195. With respect to the first factor, Andrews has provided no compelling reason for his failure to raise the issue in his opening brief. Thus, the first factor weighs in favor of waiver. However, the second and third factors weigh heavily against waiver. As to the second factor, it is clear that the Government would suffer no prejudice as a result of our considering the issue because the Government expressly concedes in its brief that remand for “clarification of the sentence” on Counts One through Six is appropriate. Finally, as to the miscarriage of justice factor, we have held, in the context of plain error review, that a general sentence error under the Sentencing Guidelines affects a defendant’s “substantial rights and result[s] in manifest injustice because, as a result of the general nature of the sentence, neither we nor [the defendant] can determine whether it was legal as to particular counts.” United States v. Ward, 626 F.3d 179, 184 (3d Cir.2010) (citation omitted). Turning to the merits, we hold that the District Court erred in imposing a general sentence of 151 months’ imprisonment on Counts One through Six. Under the Sentencing Guidelines, a district court must impose a sentence on each count. Ward, 626 F.3d at" }, { "docid": "1434451", "title": "", "text": "McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). “Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant’s acquiescence, at least until the defendant expressly and unambiguously ... requests] that ... counsel be silenced.” Id. Even absent our longstanding prohibition on “hybrid representation,” we still could not consider Turner’s pro se filings because we are bound by our local rules, which state: Except in eases in which counsel has filed a motion under L.A.R. 109.2 to withdraw under Anders v. California, 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] (1967), parties represented by counsel may not file a brief pro se. If a party sends a pro se brief to the court, the clerk will forward the brief to the party’s attorney of record, with notice to the pro se party. Counsel may choose to include the arguments in his or her brief or may in the unusual case file a motion to file a supplemental brief, if appropriate. 3d Cir. L.A.R. 31.3. Consistent with this rule, we have stated repeatedly in not precedential opinions that we consider pro se briefs only in situations governed by Anders. See, e.g., United States v. McCoy, 272 Fed.Appx. 212, 215 (3d Cir.2008); United States v. Reyes, 271 Fed.Appx. 217, 218 (3d Cir.2008); United States v. Awala, 260 Fed.Appx. 469, 471-72 (3d Cir.2008); United States v. Lott, 240 Fed.Appx. 992, 995 (3d Cir.2007). Although in the past we considered counseled parties’ pro se filings in “unusual circumstances,” see United States v. Salerno, 61 F.3d 214, 218 n. 2 (3d Cir.1995); United States v. Essig, 10 F.3d 968, 969 (3d Cir.1994), Local Appellate Rule 31.3 should have abrogated that practice when it became effective in 2002. Counsel for Turner argue that Local Appellate Rule 31.3 is ambiguous. In their view, “[c]ounsel may choose to include the arguments [of the pro se defendant] in his or her brief or may in the unusual case file a motion to file a supplemental brief [authored" }, { "docid": "1434452", "title": "", "text": "to file a supplemental brief, if appropriate. 3d Cir. L.A.R. 31.3. Consistent with this rule, we have stated repeatedly in not precedential opinions that we consider pro se briefs only in situations governed by Anders. See, e.g., United States v. McCoy, 272 Fed.Appx. 212, 215 (3d Cir.2008); United States v. Reyes, 271 Fed.Appx. 217, 218 (3d Cir.2008); United States v. Awala, 260 Fed.Appx. 469, 471-72 (3d Cir.2008); United States v. Lott, 240 Fed.Appx. 992, 995 (3d Cir.2007). Although in the past we considered counseled parties’ pro se filings in “unusual circumstances,” see United States v. Salerno, 61 F.3d 214, 218 n. 2 (3d Cir.1995); United States v. Essig, 10 F.3d 968, 969 (3d Cir.1994), Local Appellate Rule 31.3 should have abrogated that practice when it became effective in 2002. Counsel for Turner argue that Local Appellate Rule 31.3 is ambiguous. In their view, “[c]ounsel may choose to include the arguments [of the pro se defendant] in his or her brief or may in the unusual case file a motion to file a supplemental brief [authored by the pro se defendant], if appropriate.” Counsel correctly imply that Rule 31.3 does not specify who, in the “unusual case,” may be permitted to file a supplemental brief. The rule can be read, as counsel suggests, to permit the filing of pro se briefs by counseled defendants in “unusual” and “appropriate” cases. But the rule also can be read, as the Government suggests, to require all supplemental briefs to be filed by counsel. We find the Government’s interpretation to be the more natural reading of Rule 31.3. The Rule states that “[cjounsel ... may ... file a motion to file a supplemental brief.” 3d Cir. L.A.R. 31.3 (emphasis added). There is no mention of represented parties in this sentence. The beginning of Rule 31.3, which does mention pro se filings, states that they will be forwarded to counsel rather than submitted to the Court. Id. Moreover, allowing represented parties to file pro se supplemental briefs would contradict the first sentence of Rule 31.3, which states: “[e]xcept in [Anders cases], parties represented by counsel may" }, { "docid": "1434438", "title": "", "text": "testimony about the guilty pleas and verdicts resulting from Lawson’s cooperation with the Government. Counsel also challenged the District Court’s failure to strike Lawson’s references to “Jimmy X Turner” and the “criminal recordfs]” in his “dossier.” In addition to these two arguments, Turner’s counsel raised nine issues “in the style of an Anders brief,” explaining why they considered those issues frivolous. Taking his cue from counsel’s brief, Turner filed a pro se document requesting that his counsel withdraw and advancing entirely new arguments on the merits. Because Turner styled this document as a “supplement to be attached to the brief filed [by counsel],” we construed it as a motion for leave to file a supplemental brief. Two weeks later, Turner’s counsel filed a separate “Motion for Leave for the Appellant to File a Pro Se Supplemental Brief.” In doing so, counsel acknowledged that Third Circuit Local Appellate Rule 31.3 prohibits represented parties from filing pro se briefs, but they noted that the Rule also allows counsel “in the unusual case [to] file a motion to file a supplemental brief, if appropriate.” 3d Cir. L.A.R. 31.3. Counsel conceded that this case was not governed by Anders because they had not sought to withdraw from their representation of Turner. Nevertheless, counsel urged the Court to accept a supplemental brief from Turner because their “quasiAnders ” brief rendered this an “unusual case” under Local Appellate Rule 31.3. A motions panel of this Court entered an order referring both Turner’s and his counsel’s motions to the merits panel. The Government filed a motion for reconsideration of that order, arguing that it contravened Local Appellate Rule 31.3 because it required the Government to respond to the litany of issues raised in both counsel’s “quasi-Anders brief’ and Turner’s pro se motion. According to the Government, Turner was improperly seeking “hybrid representation” and “should [have been] compelled to determine ... whether he [was] represented by counsel or wishe[d] to proceed pro se.” Because we had not yet ruled on whether Turner could file a supplemental brief pro se, Turner and his counsel responded to the Government’s motion" }, { "docid": "22242836", "title": "", "text": "the one actually imposed, we reject Essig’s argument as counsel presents it. See also United States v. Schoolcraft, 879 F.2d 64, 69 (3d Cir.) (rejecting argument that § 922(g)(1) requires conviction of felony), cert. denied, 493 U.S. 995, 110 S.Ct. 546, 107 L.Ed.2d 543 (1989). Accordingly, we reject counsel’s argument that federal law does not deprive a convict of his right to possess a firearm unless his sentence actually imposed a prison term of the required length. IV. Essig, in his own pro se reply brief, advances the argument that his Pennsylvania conviction is not serious enough to support his federal conviction from a different perspective. He says he should not have been convicted of making a material false statement in violation of § 922(a)(6) because he did not lose his civil rights as a consequence of that conviction and § 921(a)(20), when read in its entirety, excludes crimes that do not affect a convict’s civil rights from its definition of crimes punishable by imprisonment for more than one year. A. Clearly, we are not required to consider Essig’s pro se argument. Issues that counseled parties attempt to raise pro se need not be considered except on a direct appeal in which counsel has filed an Anders brief. Cf. United States v. Mosely, 810 F.2d 93, 98 (6th Cir.), cert. denied, 484 U.S. 841, 108 S.Ct. 129, 98 L.Ed.2d 87 (1987); Hall v. Dorsey, 534 F.Supp. 507, 508 (E.D.Pa.1982) (criminal defendant has no right to hybrid representation both pro se and by counsel). This § 2255 proceeding in habeas is not controlled by Anders. See Pennsylvania v. Finley, 481 U.S. 551, 555-56, 107 S.Ct. 1990, 1993-94, 95 L.Ed.2d 539 (1987); see also Peterkin v. Jeffes, 855 F.2d 1021, 1044-45 (3d Cir.1988). Therefore, before deciding Es-sig’s pro se argument on its merits, we must decide preliminarily whether it is appropriate to consider a counseled appellant’s pro se issue under the circumstances of this case. The rule against considering pro se arguments of a counseled party is not without exception. See Hayes v. Hawes, 921 F.2d 100, 101 (7th Cir.1990) (although counseled" }, { "docid": "23126931", "title": "", "text": "of plea hearing that no one had made any promises or guarantees about his sentence, and he acknowledged that counsel’s predictions relating to sentencing could be wrong. Mr. Viera failed to show he suffered prejudice as a result of his attorney’s representations regarding his potential sentence. We have held that an erroneous sentencing prediction is not prejudicial where the court has conducted an adequate Rule 11 colloquy. See United States v. Hamilton, 510 F.3d 1209, 1216 (10th Cir.2007). We agree with the district court’s thorough analysis of why Mr. Viera was not prejudiced by the alleged conduct of his attorney. We therefore deny the application for a COA on this issue. Mr. Viera’s other requests for COA concern issues raised for the first time in Mr. Viera’s reply brief to this court. “We generally avoid entertaining arguments for reversing a district court’s judgment that were not adequately developed by a petitioner in his opening brief.” Prost v. Anderson, 636 F.3d 578, 594 (10th Cir.2011). Furthermore, as to issues that were not presented to the district court, we adhere to our general rule against considering issues for the first time on appeal. See McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir.2002) (“[Aft-sent extraordinary circumstances, [this court] will not consider arguments raised for the first time on appeal. This is true whether an appellant is attempting to raise a bald-faced new issue or a new theory that falls under the same general category as [a previous] argument....” (quotations and citation omitted)). III. CONCLUSION For the foregoing reasons, the district court’s denial of habeas relief is affirmed, and Mr. Viera’s application for a COA is denied. . Because Mr. Viera proceeds pro se, we liberally construe his filing but \"do not assume the role of advocate.” Yang v. Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir.2008) (quotations omitted). . Although we do not rely on our unpublished orders, we note that several have held that counsel's failure to file an appeal falls within the scope of a plea agreement waiver. See, e.g., United States v. Falcon-Sanchez, 416 Fed.Appx. 728, 730" }, { "docid": "23508987", "title": "", "text": "to him to challenge his conditions prior to our analysis in that case. According to the Government, however, Albertson’s failure to challenge the conditions of his supervised release in his opening brief waived the argument. It urged us to strike the reply brief or, at least, consider the argument waived. Rather than strike the reply, we granted the Government’s request to file a surreply. It is standard practice that an appellant must state all issues raised on appeal in the opening brief. See Fed. R.App. P. 28(a)(5); Third Cir. Local App. R. 28.1(a)(1). Indeed, it is essential to our review that the appellant properly present all issues in his opening brief. “It is well settled that an appellant’s failure to identify or argue an issue in his opening brief constitutes waiver of that issue on appeal.” United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005); see, e.g., In re Surrick, 338 F.3d 224, 237 (3d Cir.2003); see also Inst, for Scientific Info., Inc. v. Gordon & Breach, Sci. Pubis., Inc., 931 F.2d 1002, 1011 (3d Cir.1991) (finding waiver because “[n]owhere in the ‘Statement of the Issues Presented’ or the ‘Argument’ section of plaintiffs appellate brief are [the district court’s] conclusions questioned”). For these reasons, “we usually refrain from addressing an argument or issue not properly raised and discussed in the appellate briefing.” Forestal Guarani S.A. v. Daros Int’l, Inc., 613 F.3d 395, 403 (3d Cir.2010) (Cowen, J., dissenting). However, the rule does yield in “extraordinary circumstances.” See Simmons v. City of Phila., 947 F.2d 1042, 1065 (3d Cir.1991). Though our case law repeats the rule — waiver absent extraordinary circumstances — we have yet to flesh out the extraordinary circumstance exception. We find instructive an approach set out by one of our sister courts of appeals. In In re Kane, the First Circuit Court of Appeals acknowledged, as we do, that it lacked explicit standards for “what constitutes such extraordinary circumstances.” 254 F.3d 325, 331 (1st Cir.2001). It did, however, identify certain factors as “obvious” ones to consider: “whether there is some excuse for the 'failure to raise the" }, { "docid": "4833980", "title": "", "text": "that the jury followed the initial instruction, United States v. Walker, 657 F.3d 160, 171 (3d Cir.2011), we conclude that the District Court committed no error in instructing the jury on Count Seven. IV. Finally, we address the legality of the sentence imposed by the District Court. The Government noted in its brief that the District Court erred in imposing a “general sentence” on Counts One through Six, instead of specifying an individual sentence for each offense. Andrews did not properly raise this issue in his opening brief, and ordinarily “an appellant’s failure to identify or argue an issue in his opening brief constitutes waiver of that issue on appeal.” United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005) (citations omitted). However, the waiver rule yields in “extraordinary circumstances.” United States v. Albertson, 645 F.3d 191, 195 (3d Cir.2011). In determining whether a case presents “extraordinary circumstances,” we consider three factors: (1) “whether there is some excuse for the [appellant’s] failure to raise the issue in the opening brief’; (2) the extent to which the opposing party would be prejudiced by our considering the issue; and (3) “whether failure to consider the argument would lead to a miscarriage of justice or undermine confidence in the judicial system.” Id. (quoting In re Kane, 254 F.3d 325, 331 (1st Cir.2001)). The miscarriage of justice factor is “somewhat similar to the 'plain error’ rule,” which allows appellate courts to correct an error not raised before the district court if the error affected the defendant’s substantial rights and “seriously affected] the fairness, integrity or public reputation of judicial proceedings.” Id. at 196 (quoting Gambino v. Morris, 134 F.3d 156, 169 n. 12 (3d Cir.1998) (Roth, J., concurring), and United States v. Knight, 266 F.3d 203, 207 (3d Cir.2001)). Applying these factors to Andrews’s case, we believe “the balance weighs in favor of reviewing the merits” of the general sentence issue. Id. at 195. With respect to the first factor, Andrews has provided no compelling reason for his failure to raise the issue in his opening brief. Thus, the first factor weighs in favor" }, { "docid": "4833984", "title": "", "text": "4(b)(2), we treat the notice of appeal as filed on the date that the District Court entered its judgment. In April 2011, Andrews filed a motion for release pending appeal, in which he argued that his appeal raised several substantial questions of law, likely to result in reversal of his conviction, a new trial, a noncustodial sentence, or a shorter term of imprisonment. On September 6, 2011, the District Court denied his motion. United States v. Andrews, No. 04-38-2, 2011 WL 3903229, at *5 (D.Vi. Sept. 6, 2011). .The Government noted in its brief that the District Court erred in imposing a “general sentence” of 151 months’ imprisonment on Counts One through Six. Andrews did not properly raise this issue in his opening brief, and ordinarily we would consider it waived. United States v. Albertson, 645 F.3d 191, 195 (3d Cir.2011); see Fed. R.App. P. 28(a)(5); Third Circuit L.A.P. 28.1(a)(1). However, because we believe that this case presents \"extraordinary circumstances,” we will consider the legality of the sentence imposed by the District Court. See Albertson, 645 F.3d at 195. . The Government argues that Andrews waived his right to challenge the jury instructions on appeal because his attorney objected to the initial instruction and persuaded the District Court to provide a clarifying instruction. Under the \"invited error” doctrine, where a defendant makes a request in favor of certain instructions, he waives the right to complain of error in such instructions on appeal. United States v. Ozcelik, 527 F.3d 88, 97 n. 6 (3d Cir.2008); United States v. Console, 13 F.3d 641, 660 (3d Cir.1993). However, we have previously held that \"[w]here a defendant submits proposed jury instructions in reliance on current law” and while his case is on direct appeal, the law is found to be constitutionally problematic, we will not apply the \"invited error” doctrine. United States v. West Indies Transp., Inc., 127 F.3d 299, 305 (3d Cir.1997). Instead, we review for plain error. Id. This is consistent with the Supreme Court's definition of waiver as the \"intentional relinquishment or abandonment of a known right.” United States v. Olano," }, { "docid": "1434449", "title": "", "text": "not, and should not, raise every ... claim but rather may select among them in order to maximize the likelihood of success on appeal.” Showers v. Beard, 635 F.3d 625, 634 (3d Cir.2011) (citing Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)). Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.... A brief that raises every colorable issue runs the risk of burying good arguments — those that ... “go for the jugular” — in a verbal mound made up of strong and weak contentions. Jones, 463 U.S. at 751-53, 103 S.Ct. 3308. “Indeed, an appellate lawyer’s exercise of professional judgment in omitting weaker claims is obviously of benefit to the client: the more claims an appellate brief contains, the more difficult for an appellate judge to avoid suspecting that there is no merit to any of them.” Johnson v. Tennis, 549 F.3d 296, 302 (3d Cir.2008) (citation and internal quotation marks omitted); see also Ruggero J. Aldisert, The Appellate Bar: Professional Competence and Professional Responsibility — A View from the Jaundiced Eye of One Appellate Judge, 11 Cap. U.L.Rev. 445, 458 (1982) (“Appellate advocacy is measured by effectiveness, not loquaciousness.”). “[T]o second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every ‘colorable’ claim suggested by a client would disserve the very goal of vigorous and effective advocacy that underlies Anders.” Jones, 463 U.S. at 754, 103 S.Ct. 3308. B In addition to vetting frivolous issues in their “quasi-Anders brief,” counsel invite us to consider Turner’s pro se filings, which also present frivolous issues, because this is an “unusual case.” We reject that invitation because our local rules preclude us from considering Turner’s pro se arguments while he is represented by counsel. Accordingly, the order filed December 1, 2011 is hereby vacated. Pro se litigants have no right to “hybrid representation” because “[a] defendant does not have a constitutional right to choreograph special appearances by counsel.”" }, { "docid": "12794933", "title": "", "text": "addresses the circumstances of this case and that a sentence of the mid range based upon the criminal history is entirely supported and appropriate in this case.” In addition, the district court explicitly addressed and rejected Scales’ proffered Guidelines range. We need not guess what the district court would have done in the event the advisory Guidelines range was as Scales suggests. The district court made it clear the sentence was “essentially in the middle of either one of those ranges, so it ends up being a not terribly significant consequence.” The district court did not abuse its discretion by sentencing Scales within the Guidelines range to serve a total of 120 months in prison on the three drug counts. D.Pro Se Brief Although “[i]t is Eighth Circuit policy not to consider pro se filings when the appellant is represented by counsel,” United States v. Montgomery, 701 F.3d 1218, 1220 n. 2 (8th Cir.2012) (internal quotation omitted), in response to Scales’ pro se motion for appointment of new attorney, we granted Seales permission to file a pro se brief setting out the issues he believes should have been raised in the brief filed by his appointed attorney. Renitently, we will consider the five issues raised by Scales in his pro se brief. See United States v. Benson, 686 F.3d 498, 505 (8th Cir.2012). Scales first challenges the integrity of the superseding indictment, contending there is no factual basis in support Of count four, possession of a firearm in violation of 18 U.S.C. § 924(c)(1)(A). Scales did not preserve this contention below, so we review only for plain error. See United States v. Espinoza Bravo, 624 F.3d 921, 924 (8th Cir.2010) (per curiam); Scales quotes Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), in an effort to cast aspersion on the sufficiency of the indictment, stating that use of a firearm is required, not mere possession. But the statute was amended by Congress in direct response to Bailey: “Congress’ 1998 reformulation of § 924(c) ... responded primarily to [the Supreme Court’s] decision in Bailey [" }, { "docid": "1434450", "title": "", "text": "(3d Cir.2008) (citation and internal quotation marks omitted); see also Ruggero J. Aldisert, The Appellate Bar: Professional Competence and Professional Responsibility — A View from the Jaundiced Eye of One Appellate Judge, 11 Cap. U.L.Rev. 445, 458 (1982) (“Appellate advocacy is measured by effectiveness, not loquaciousness.”). “[T]o second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every ‘colorable’ claim suggested by a client would disserve the very goal of vigorous and effective advocacy that underlies Anders.” Jones, 463 U.S. at 754, 103 S.Ct. 3308. B In addition to vetting frivolous issues in their “quasi-Anders brief,” counsel invite us to consider Turner’s pro se filings, which also present frivolous issues, because this is an “unusual case.” We reject that invitation because our local rules preclude us from considering Turner’s pro se arguments while he is represented by counsel. Accordingly, the order filed December 1, 2011 is hereby vacated. Pro se litigants have no right to “hybrid representation” because “[a] defendant does not have a constitutional right to choreograph special appearances by counsel.” McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). “Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant’s acquiescence, at least until the defendant expressly and unambiguously ... requests] that ... counsel be silenced.” Id. Even absent our longstanding prohibition on “hybrid representation,” we still could not consider Turner’s pro se filings because we are bound by our local rules, which state: Except in eases in which counsel has filed a motion under L.A.R. 109.2 to withdraw under Anders v. California, 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] (1967), parties represented by counsel may not file a brief pro se. If a party sends a pro se brief to the court, the clerk will forward the brief to the party’s attorney of record, with notice to the pro se party. Counsel may choose to include the arguments in his or her brief or may in the unusual case file a motion" }, { "docid": "1434439", "title": "", "text": "file a supplemental brief, if appropriate.” 3d Cir. L.A.R. 31.3. Counsel conceded that this case was not governed by Anders because they had not sought to withdraw from their representation of Turner. Nevertheless, counsel urged the Court to accept a supplemental brief from Turner because their “quasiAnders ” brief rendered this an “unusual case” under Local Appellate Rule 31.3. A motions panel of this Court entered an order referring both Turner’s and his counsel’s motions to the merits panel. The Government filed a motion for reconsideration of that order, arguing that it contravened Local Appellate Rule 31.3 because it required the Government to respond to the litany of issues raised in both counsel’s “quasi-Anders brief’ and Turner’s pro se motion. According to the Government, Turner was improperly seeking “hybrid representation” and “should [have been] compelled to determine ... whether he [was] represented by counsel or wishe[d] to proceed pro se.” Because we had not yet ruled on whether Turner could file a supplemental brief pro se, Turner and his counsel responded to the Government’s motion independently. First, Turner filed a motion purporting to “counterattack” the Government’s motion, as well as requesting “hybrid representation by both counsel and defendant” because there were “issues of merit that [they stood] divided on.” Next, counsel filed their own response to the Government’s motion, reiterating that this qualified as an “unusual case” under Local Appellate Rule 31.3. Counsel added that they had filed a “quasi-Anders ” brief “to satisfy [their] dual obligations to the defendant and to this Court ... to make any arguments they could in good faith on the defendant’s behalf [while addressing] arguments that the client insisted be made, despite [their] advice.” The motions panel denied the Government’s motion for reconsideration. Consequently, the Government filed a merits brief that addressed the two non-frivolous issues in counsel’s “quasi-Alders ” brief but insisted that pro se briefs by counseled parties violate our local rules. Turner’s counsel filed a reply brief, contending that Local Appellate Rule 31.3 was ambiguous and could be read to permit counsel “in the unusual case [to] file a motion to" }, { "docid": "4833979", "title": "", "text": "Thus, the jury was clearly instructed that regardless of whether Andrews had entered into a valid contract with the GVI and had a right to file a claim for payment, an issue which was subject to dispute, the jury could only convict if it found that Andrews submitted a claim to the GVI, knowing that the claim contained false statements. Andrews did not request that the District Court repeat this instruction during the final charge. In its final instruction, the District Court stated: “the government has to prove that there was a fraudulent claim submitted, that is, it was done for the purpose of trying to cheat the Government of the Virgin Islands, and that it was done not because of mistake or accident, not in good faith, but it was done with fraudulent intent.” Nothing in this instruction suggested to the jury that it could convict Andrews under 14 V.I.C. § 843(4) if it found that Andrews had no contract with the GVI and thus no right to file a claim. Because we presume that the jury followed the initial instruction, United States v. Walker, 657 F.3d 160, 171 (3d Cir.2011), we conclude that the District Court committed no error in instructing the jury on Count Seven. IV. Finally, we address the legality of the sentence imposed by the District Court. The Government noted in its brief that the District Court erred in imposing a “general sentence” on Counts One through Six, instead of specifying an individual sentence for each offense. Andrews did not properly raise this issue in his opening brief, and ordinarily “an appellant’s failure to identify or argue an issue in his opening brief constitutes waiver of that issue on appeal.” United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.2005) (citations omitted). However, the waiver rule yields in “extraordinary circumstances.” United States v. Albertson, 645 F.3d 191, 195 (3d Cir.2011). In determining whether a case presents “extraordinary circumstances,” we consider three factors: (1) “whether there is some excuse for the [appellant’s] failure to raise the issue in the opening brief’; (2) the extent to which" }, { "docid": "1434440", "title": "", "text": "independently. First, Turner filed a motion purporting to “counterattack” the Government’s motion, as well as requesting “hybrid representation by both counsel and defendant” because there were “issues of merit that [they stood] divided on.” Next, counsel filed their own response to the Government’s motion, reiterating that this qualified as an “unusual case” under Local Appellate Rule 31.3. Counsel added that they had filed a “quasi-Anders ” brief “to satisfy [their] dual obligations to the defendant and to this Court ... to make any arguments they could in good faith on the defendant’s behalf [while addressing] arguments that the client insisted be made, despite [their] advice.” The motions panel denied the Government’s motion for reconsideration. Consequently, the Government filed a merits brief that addressed the two non-frivolous issues in counsel’s “quasi-Alders ” brief but insisted that pro se briefs by counseled parties violate our local rules. Turner’s counsel filed a reply brief, contending that Local Appellate Rule 31.3 was ambiguous and could be read to permit counsel “in the unusual case [to] file a motion to file a supplemental brief [authored by the pro se defendant].” The case was calendared, and oral argument was scheduled. The case took yet another twist, however, when we granted Turner’s and counsel’s long-pending initial motions, which had requested leave for Turner to file a pro se supplemental brief. Turner seized on this opportunity to file yet another brief, which he conceded did not “quote[ ] any case law, states [sic], or rules” but which nevertheless raised four additional issues. Justifiably perplexed, the Government responded to Turner’s third and final pro se filing, beginning with the understatement that “[t]his appeal has followed a most unusual course.” The Government also expressed confusion because it believed that Turner already had submitted a supplemental pro se brief as part of his first motion to this Court. The Government therefore was “unclear whether the opportunity to file a pro se supplemental brief [in the Court’s latest order] referred to a new brief, or a reply brief to the government’s brief.” Finally, the Government once again argued that the Court should" }, { "docid": "23403198", "title": "", "text": "pro se supplemental brief for consideration. On this record, Holloway has met his burden of showing that he exhausted the Batson claim on direct appeal, as he placed the state court on notice of the factual and legal substance of his federal equal protection argument and raised the claim through the established system for review. Cf. Buehl v. Vaughn, 166 F.3d 163, 176 n. 8 (3d Cir.1999) (noting in a capital case that counseled petitioner exhausted claims by presenting them in a pro se brief to the Pennsylvania Supreme Court). The Commonwealth argues that we cannot rely on the testimony of Holloway’s direct appeal counsel because the District Court lacked authority under 28 U.S.C. § 2254(e)(2) to hold an evidentiary hearing. Appellees Br. at 55-57. This Court has held, however, that it is within a District Court’s authority to grant a hearing on a petitioner’s ability to establish cause to excuse a procedural default, and therefore § 2254(e)(2) is inapplicable to those hearings. Cristin v. Brennan, 281 F.3d 404, 412-13 (3d Cir.), cert. denied, 537 U.S. 897, 123 S.Ct. 195, 154 L.Ed.2d 166 (2002). Appellate counsel’s testimony regarding the direct appeal proceedings fell within the scope of the evidentiary hearing, which was conducted to determine whether there was any objective factor external to the defense that prevented counsel from pressing the Batson claim in the counseled direct appeal brief. Thus, the evidence adduced at the hearing is properly considered for purposes of the exhaustion analysis. Our conclusion that Holloway exhausted the Batson elaim by means of his pro se brief is fully supported by the Pennsylvania Supreme Court’s practice, at the time of Holloway’s appeal, of considering issues raised pro se even if counseled briefs were filed. In a capital case decided while Holloway’s direct appeal was pending, Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989), the Pennsylvania Supreme Court noted that appellate counsel neglected to raise an issue concerning the trial court’s failure to render an appropriate jury instruction. The appellant himself, however, raised a challenge on that basis in a pro se supplemental brief. Id. at" }, { "docid": "4493196", "title": "", "text": "we have said before that “a defendant does not have an affirmative right to submit a pro se brief when represented by counsel,” United States v. Gwiazdzinski, 141 F.3d 784, 787 (7th Cir.1998), “nothing precludes an appellate court from accepting the pro se brief and considering the arguments contained therein for whatever they may be worth.” Hayes v. Hawes, 921 F.2d 100, 101-02 (7th Cir.1990). On January 4, 2013, this court ordered that Eads’s opening pro se brief only raise certain issues related to his ability to represent himself at trial, the sufficiency of the evidence at trial, and the denial of his motion for a new trial. His counsel’s brief challenges the district court’s admission of certain evidence at trial, the sufficiency of the evidence, and his sentence. We will address each argument in turn below (to the extent that they warrant discussion), but we condense the overlapping arguments and decline to address the other unrelated issues Eads raises in his pro se brief that go beyond the scope of our order. A. No Abuse of Discretion in Allowing Self-Representation The first matter to resolve is whether the district court abused its discretion in allowing Eads to represent himself at trial. In considering Eads’s waiver of his right to counsel, our task is to examine the record as a whole to see if he “knowingly and intelligently” waived his right to .counsel. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In determining whether Eads’s decision was made knowingly and intelligently, we consider (1) whether and to what extent the district court conducted a “formal hearing” into Eads’s decision to represent himself, (2) whether there is other evidence in the record that establishes that Eads “understood the disadvantages of self-representation,” (3) Eads’s “background and experience,” and (4) the “context” of Eads’s decision to proceed pro se. See United States v. Avery, 208 F.3d 597, 601 (7th Cir.2000) (citations omitted). In this case, the district court questioned Eads at length about whether he had ever studied law, represented himself in a criminal proceeding, understood the" }, { "docid": "1434453", "title": "", "text": "by the pro se defendant], if appropriate.” Counsel correctly imply that Rule 31.3 does not specify who, in the “unusual case,” may be permitted to file a supplemental brief. The rule can be read, as counsel suggests, to permit the filing of pro se briefs by counseled defendants in “unusual” and “appropriate” cases. But the rule also can be read, as the Government suggests, to require all supplemental briefs to be filed by counsel. We find the Government’s interpretation to be the more natural reading of Rule 31.3. The Rule states that “[cjounsel ... may ... file a motion to file a supplemental brief.” 3d Cir. L.A.R. 31.3 (emphasis added). There is no mention of represented parties in this sentence. The beginning of Rule 31.3, which does mention pro se filings, states that they will be forwarded to counsel rather than submitted to the Court. Id. Moreover, allowing represented parties to file pro se supplemental briefs would contradict the first sentence of Rule 31.3, which states: “[e]xcept in [Anders cases], parties represented by counsel may not file a brief pro se.” Id. By requiring that briefs be filed only by counsel, we ensure that counsel and client speak with one voice. When a client seeks to raise additional issues, counsel must evaluate them and present only the meritorious ones, rather than simply seeking leave for the client to file a supplemental brief. This promotes effective advocacy because it prevents counsel from allowing frivolous arguments to be made by the client. See Jones, 463 U.S. at 751-53, 103 S.Ct. 3308. We also note that the convoluted procedural history in this case illustrates well the hazards of reading Rule 31.3 as Turner’s counsel suggest. If represented parties could file pro se briefs, their adversaries would have to respond on two distinct fronts. Apart from the procedural morass that would follow such “hybrid” advocacy (as occurred in this case), our attention would be diverted from potentially meritorious arguments. In light of the foregoing, we now hold that, except in eases governed by Anders, parties represented by counsel may not file pro se briefs." }, { "docid": "22242837", "title": "", "text": "required to consider Essig’s pro se argument. Issues that counseled parties attempt to raise pro se need not be considered except on a direct appeal in which counsel has filed an Anders brief. Cf. United States v. Mosely, 810 F.2d 93, 98 (6th Cir.), cert. denied, 484 U.S. 841, 108 S.Ct. 129, 98 L.Ed.2d 87 (1987); Hall v. Dorsey, 534 F.Supp. 507, 508 (E.D.Pa.1982) (criminal defendant has no right to hybrid representation both pro se and by counsel). This § 2255 proceeding in habeas is not controlled by Anders. See Pennsylvania v. Finley, 481 U.S. 551, 555-56, 107 S.Ct. 1990, 1993-94, 95 L.Ed.2d 539 (1987); see also Peterkin v. Jeffes, 855 F.2d 1021, 1044-45 (3d Cir.1988). Therefore, before deciding Es-sig’s pro se argument on its merits, we must decide preliminarily whether it is appropriate to consider a counseled appellant’s pro se issue under the circumstances of this case. The rule against considering pro se arguments of a counseled party is not without exception. See Hayes v. Hawes, 921 F.2d 100, 101 (7th Cir.1990) (although counseled litigants have no Sixth Amendment right to make pro se submission on appeal, court of appeals may, in its discretion, consider arguments raised). It is intended to avoid conflicting arguments and to foster judicial efficiency. Here, Essig’s counsel has stated that he plans to file a second § 2255 petition in which he will again raise the civil rights issue Essig is now raising pro se and in that second petition seek an evidentiary hearing. Further consideration of that issue will be unnecessary, however, if it has already been decided that the issues counsel is charged with failing to raise lack merit. Thus, present consideration of Essig’s pro se argument fosters judicial efficiency. Because a § 2255 petitioner may have a limited number of bites at the apple, it may also be to Essig’s benefit for us to consider this issue now on its merits. Other peculiar circumstances which are material to the exercise of our discretion to consider Essig’s pro se argument attend this appeal. Essig filed the present § 2255 pro ceeding pro" } ]

[ { "docid": "22875672", "title": "", "text": "of their sentences. We will begin with Orlando’s appeals, and in so doing, we will also reach the merits of some of the other defendants’ appeals. II. Severance Joseph Orlando contends his trial should have been severed from that of co-defendant Victor Samaha. He maintains the failure to grant his pre-trial motion for severance, or to order severance sua sponte during trial based on the misconduct of Samaha and his attorney, warranted a mistrial. We review the denial of the pre-trial motion for severance for abuse of discretion, see United States v. Sharma, 190 F.3d 220, 230 (3d Cir.1999), and the failure to order severance sua sponte for plain error. See United States v. Quintero, 38 F.3d 1317, 1339 (3d Cir.1994). Whether to sever a trial is left to the sound discretion of the district courts. See Zafiro v. United States, 506 U.S. 534, 541, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993); United States v. Reicherter, 647 F.2d 397, 400 (3d Cir.1981). But even with an abuse of discretion, reversal is not required absent “clear and substantial prejudice” resulting in a manifestly unfair trial. United States v. Palma-Ruedas, 121 F.3d 841, 854 (3d Cir.1997), rev’d on other grounds and judgment of conviction reinstated sub nom., United States v. Rodriguez-Moreno, 526 U.S. 275, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999). Because we find no abuse of discretion or substantial prejudice, we will affirm. Fed. R. of Crim. P. 14 permits the trial court to sever a defendant from a trial where “it appears that a defendant or the government is prejudiced by a joinder.” There is no prejudice merely because defendants are tried together. “There is a preference in the federal system for joint trials of defendants who are indicted together.” Zafiro, 506 U.S. at 537, 113 S.Ct. 933. Here, Orlando contends the prejudice he suffered was twofold. First, he claims he was prejudiced by “spillover evidence” submitted about co-defendant Sam-aha’s role in the conspiracy. But as the government argues, Orlando’s defense was premised on shifting the responsibility for the illegal conduct to his supervisors and other managers. Therefore, any evidence" } ]

[ { "docid": "5962354", "title": "", "text": "to the jury beyond a reasonable doubt”). In this case, Brown and Doerr do not claim that their sentences exceeded the statutory maximum allowable based on the jury’s findings. Therefore, based on the totality of the evidence presented against Brown and Doerr at trial and during the sentencing hearing regarding the total quantity of drugs involved in the conspiracy, as well as their direct involvement with significant quanti ties of those drugs, we find that the district court did not clearly err in calculating the applicable advisory Guideline ranges for Brown and Doerr. Finally, Doerr alone argues that the district court erred by denying his motion for severance. This court reviews a district court’s refusal to grant a motion for severance for abuse of discretion. United States v. Donovan, 24 F.3d 908, 915 (7th Cir.1994). It is well settled that co-conspirators who are charged together generally should be tried together. United States v. Carrillo, 435 F.3d 767, 778 (7th Cir.2006) (citing Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993)). “The district court is given wide discretion in determining when the prejudice of joinder outweighs the benefits of a single trial.” Id. (citing Fed.R.Crim.P. 14). “In all but the most unusual circumstances, the risk of prejudice arising from a joint trial is outweighed by the economies of a single trial in which all facets of the crime can be explored once and for all.” Id. (internal citations and quotations omitted). In short, “[sjeverance should be granted ‘only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.’ ” Id. (quoting Zafiro, 506 U.S. at 539, 113 S.Ct. 933). Here, Doerr based his motion for severance upon his intent to employ at trial the affirmative defense of reliance on public authority based on his prior status as a confidential informant for the government. The district court, however, found that Doerr was not entitled to assert the public authority defense because the" }, { "docid": "15595598", "title": "", "text": "to deny Vida’s claim that the trial court should have granted a severance sua sponte. We reach the same conclusion in this case. The charges against Janet Livingston were proved by the same evidence and resulted from the same facts as the charges against Willie Critton and Leslie Livingston. It is unlikely that joinder confused the jury, since the cases against the defendants arose from the same facts. It does not appear that Janet Livingston was prejudiced by the join-der. The evidence that was excluded as a result of the combined trial — Willie Critton’s alleged statements to Leslie Livingston — is only one piece of evidence out of many. As we noted in discussing her claim of insufficiency of evidence, many other facts in this case incriminated Janet Livingston. In light of all the evidence, we conclude that the trial court did not abuse its discretion by failing to order a separate trial for Janet Livingston sua sponte. The evidence strongly supported the government’s claim that the three defendants engaged in a joint undertaking that included possession of illegal drugs with intent to distribute and carrying weapons in relation to this crime. VI. The district court sentenced the defendants under United States Sentencing Guidelines (U.S.S.G.) § 1B1.3. Using this guideline, the district court set Willie Critton’s offense level at 34. Critton contends this was error. This court reviews the factual findings of a district court regarding the amount of drugs for which a defendant is held accountable only for clear error. United States v. Ferguson, 23 F.3d 135, 141-42 (6th Cir.), cert. denied, — U.S. -, 115 S.Ct. 259, 130 L.Ed.2d 179 (1994); United States v. Walton, 908 F.2d 1289, 1300-01 (6th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990). Findings on which the sentence is based need only be supported by a preponderance of the evidence. Walton, 908 F.2d at 1301. U.S.S.G. § lB1.3(a)(l)(B), under which Willie Critton’s offense level was determined, states, “in the case of a jointly undertaken criminal activity (a criminal plan ... undertaken by the defendant in concert with" }, { "docid": "15482632", "title": "", "text": "the sale of the “estate cars,” but refunded approximately $8.5 million. The car scam began to run out of gas when the Missouri Attorney General’s Office was notified of the scheme and began an investigation. The United States Postal Inspectors and the Federal Bureau of Investigation later joined in the investigation. From those investigations, a Missouri Grand Jury returned a twenty-three count indictment against Gomez and Nichols. Prior to trial, Gomez and Nichols sought to have their respective cases severed and tried separately. The district court denied their motions. Gomez also sought to dismiss the money laundering counts of-,the indictment for lack of venue. The district court also denied that motion. At trial, Nichols testified in his own defense claiming that Gomez had set him up. Gomez did not testify. The jury returned guilty verdicts against both Nichols and Gomez. After reviewing a presentence investigation report (PSR), and conducting a sentencing hearing, the district court sentenced Nichols to a total term of 292 months’ imprisonment and Gomez was sentenced to a term of 262 months’ imprisonment. This joint appeal followed. II. Discussion Together, Nichols and Gomez assert a total of eight points on appeal. Some arguments are pressed by both, and others are brought independently. We address the joined arguments together, and the individual arguments will be addressed separately. A. Severance — Nichols and Gomez Both Nichols and Gomez assert that the district court erred in refusing to sever the trial. They maintain that their mutually antagonistic defenses necessitated severance. We review a district court’s denial of a motion to sever for an abuse of discretion. United States v. Mickelson, 378 F.3d 810, 817-18 (8th Cir.2004). In order to reverse, the appellant must show that his or her right to a fair trial was prejudiced. Id.; see also Zafiro v. United States, 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Defendants who are jointly indicted on similar evidence from the same or related events should normally be tried together; to warrant severance a defendant must show “real prejudice”; that is, “something more than the mere fact that he" }, { "docid": "11283217", "title": "", "text": "not object to Bernard’s evidence and failed to renew an unsuccessful pretrial motion for severance. United States v. Misher, 99 F.3d 664, 669 (5th Cir.1996). Reversal may occur under the demanding plain error standard only if there was (1) clear or obvious (2) error that (3) affected Vialva’s substantial rights, and (4) failure to correct the error seriously affects the fairness, integrity or public reputation of the judicial proceedings. United States v. Olano, 507 U.S. 725, 730-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Vialva cannot satisfy the standard. No clear error attached to the district court’s failure sua sponte to sever and grant a mistrial when Bernard offered a bit of evidence of his Christian conversion. The decision to sever lies in the trial court’s discretion. Severance “should” be granted “only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants.” Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). A court’s limiting instructions will often cure any prejudice resulting from a joint trial. Id. Further, defendants charged with capital murder under federal statutes have been tried jointly in both the guilt and penalty phases of trial. See United States v. Causey, 185 F.3d 407 (5th Cir.1999); United States v. Tipton, 90 F.3d 861 (4th Cir.1996). While acknowledging that efficiency factors support joint trials even in capital cases, we share Vialva’s concern over the inherent tension between joinder and each defendant’s constitutional entitlement to an individualized capital sentencing decision. A trial court must be especially sensitive to the existence of such tension in capital cases, which demand a heightened degree of reliability. Lowenfield v. Phelps, 484 U.S. 231, 238-39, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988); see generally Tipton, 90 F.3d at 891-92 (discussing problems posed by joinder in the penalty phase of a federal capital case, but noting that since the federal statute requires the sentencing decision to be made by the jury that tried the defendants’ guilt, severance during the penalty phase is impractical.) Nevertheless, the pro-Bernard mitigating evidence of" }, { "docid": "23348144", "title": "", "text": "on inappropriate evidence during his sentencing hearing; (3) jury instruction No. 13 was erroneously submitted; (4) he was denied his constitutional right to a speedy trial; and (5) the district court erred when it failed to instruct the jury that it must unanimously agree on the acts which constitute a CCE. 1. Severance Colon filed a pretrial motion to have his trial severed from that of his codefendants, which the district court denied. Colon maintains that his trial should have been severed because: (1) the statements of both Marisol and Souffront were submitted into evidence but neither testified and were therefore not subject to cross-examination; (2) Marisol presented prejudicial evidence in connection with her defense that she participated in the conspiracy because she was under the “psychological domination” of Colon; and (3) other code-fendants presented similar “mutually antagonistic” defenses, in that “the appearance of one party’s defense preclude[d] the acquittal of the other defendant.” Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (citation omitted). We review the denial of a motion to sever for an abuse of discretion. United States v. Smith, 223 F.3d 554, 573 (7th Cir.2000) (citation omitted). Multiple defendants may be tried together “if they are alleged to have participated ... in the same series of acts or transactions, constituting an offense or offenses.” Fed. R. CRIM. P. 8(b). In fact, “[t]here is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials ‘play a vital role in the criminal justice system.’ They promote efficiency and ‘serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.’” Zafiro, 506 U.S. at 537, 113 S.Ct. 933 (quoting Richardson v. Marsh, 481 U.S. 200, 209-10, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)). There is a particularly strong preference for a single trial with codefendants who have been jointly indicted. See United States v. McClurge, 311 F.3d 866, 871 (7th Cir.2002) (citation omitted). However, “[i]f the joinder of offenses or defendants in an indictment ... or a consolidation for trial appears to prejudice" }, { "docid": "11722768", "title": "", "text": "appellants’ protestations to the contrary, we agree with the government that the decision to sever was made sua sponte by the trial judge. The government chose the defendants for the first trial only after the court’s decision to sever. In its severance order, the district court stated: “At calendar call, the Court announced its intention to separate the defendants into two groups and hold a separate trial for each group. The Court decided to split this matter into two trials because of the logistical difficulties associated with trying eleven defendants at once.” The language of the district court’s order and the absence of any evidence of a motion to sever by the government indicate that the motion was made sua sponte. Federal Rule of Criminal Procedure 14 allows severance for trial when a defendant or the government may be prejudiced by joinder. Although the rule is silent as to the trial court’s authority to grant a severance sua sponte, this power has been recognized. See e.g., Jackson v. United States, 412 F.2d 149, 151 (D.C. Cir.1969). The general rule is that, “[bjarring ‘special circumstances’ ... defendants indicted together should be tried together for the sake of judicial economy.” United States v. Rusher, 966 F.2d 868, 877 (4th Cir.), cert. denied, — U.S. -, 113 S.Ct. 351, 121 L.Ed.2d 266 (1992). However, “[t]he grant or denial of a motion for severance ... is within the trial court’s discretion and will not be overturned absent a clear abuse of that discretion.” United States v. West, 877 F.2d 281, 287-88 (4th Cir.1989), cert. denied, 493 U.S. 959, 110 S.Ct. 377, 107 L.Ed.2d 362 (1989). Here, the appellants have not asserted the necessary colorable claim of prejudice that would demonstrate an abuse of discretion by the district court. Id. at 288. All five appellants’ attacks on the severance action must therefore fail under either standard of review. Turning to the several attacks on the convictions and the district court’s sentencing procedures, we consider first Alvin Trues-dale’s contention that there was insufficient evidence to support one of his firearms convictions. Ill In Count 11 of" }, { "docid": "5882259", "title": "", "text": "not to consider the fact that an accomplice has entered a guilty plea to' any offense as evidence of the guilt of any other person. The record also did not reveal that either the district court or the prosecutor adversely influenced the jury in any way to prejudice Defendants. This was not plain error. See Reagan, 725 F.3d at 491. D.The District Court’s Failure to sua sponte Sever Velasquez Velasquez avers that he was prejudiced by the district court not severing his case from Rodriguez and Cassiano to be retried separately at a later date, and this decision constituted reversible error. This court is not convinced by Velasquez’s argument. 1. Standard of Review The decision of the district court not to sua sponte sever Velasquez from the trial to be retried separately at a later date will be reviewed for plain error because Velasquez did not move to sever his case or object to being tried with Defendants. To establish plain error, Velasquez must show an error is clear or obvious and affects his substantial rights. United States v. Prieto, 801 F.3d 547, 549-50 (5th Cir. 2015) (per curiam). If the preceding requirements are met, the reviewing court may in its discretion remedy the error only if the error “seriously affects the fairness, integrity or public reputation of the judicial proceedings.” Id. 2. Applicable Law and Analysis “[T]he mere presence of a spillover effect does not ordinarily warrant severance.” United States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir. 1993). Moreover, the trial court instructed the jury to limit all the evidence to the appropriate defendant. “[J]uries are presumed to follow their instructions.” United States v. Cessa, 785 F.3d 165, 183 (5th Cir. 2015) (quoting Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993)). The jury is determined to have accordingly been able to separate the evidence and properly applied it to each Defendant, including Velasquez. The other murders and the activities relating to drug distribution are also probative towards the racketeering acts that the Texas Syndicate conducted during Velasquez’s membership and to the" }, { "docid": "5287645", "title": "", "text": "L.Ed.2d 804 (2012). Thus, the defendant must demonstrate more than a higher probability of acquittal had severance been granted. Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Consequently the defendant carries a heavy burden in demonstrating that severance is mandated. Sandstrom, 594 F.3d at 644. This is especially true when the district court, like here, provides limiting instructions to the jury on the use of evidence against only one defendant. See Zafiro, 506 U.S. at 539, 113 S.Ct. 933. Finally, severe prejudice may occur when evidence against one defendant is admitted despite it not being admissible had a defendant been tried alone. Id. “Generally, persons charged in a conspiracy should be tried together, especially when proof of the charges against the defendants is based upon the same evidence and acts.” Mueller, 661 F.3d at 347 (quotation and citation omitted). A joint trial is preferable because it “gives the jury the best perspective on all of the evidence and, therefore, increases the likelihood of a correct outcome.” Pherigo, 327 F.3d at 693 (quotation and citation omitted). Finally, the decision to grant severance to a defendant from a joint trial is within the district court’s discretion. United States v. Ortiz, 315 F.3d 873, 898 (8th Cir.2002). 1. Authentication of the Note Young contends that the note found in her purse at arrest would not have been introduced at a severed trial. Young also argues that the district court erroneously admitted the note because of a lack of authentication; however, as previously discussed, Mock sufficiently authenticated this note. See Part II.D., supra. Young is correct that the note likely would not have been introduced against her except that the district court tried Young and Mock together. However, the jury apparently gave the note little credence, if any, considering that it still found Mock guilty. In light of the overwhelming evidence of her guilt, we conclude that Young has not shown severe prejudice, and the district court did not abuse its discretion. 2. Mutually Antagonistic Defenses The Supreme Court has held that mutually antagonistic defenses are not" }, { "docid": "1302810", "title": "", "text": "reputation of judicial proceedings. The statute under which he was sentenced, 21 U.S.C. § 841(b)(1)(A), governs offenses involving five kilograms or more of cocaine. The evidence against him with regard to drug quantity was overwhelming, and, at least as to ten kilograms of cocaine, uncontested. At the sentencing hearing, his counsel argued that the quantity with which Sousa had been involved was substantially less than the total included in the conspiracy, and that the quantity attributable to Sousa was “only about ten kilograms.” Therefore, his sentence will be affirmed under the authority of Cotton. B. Motion to Sever Lopez also argues that the district court erred in denying his pre-trial motion to sever his trial from Souza’s trial. The denial of a motion to sever is reviewed for abuse of discretion. United States v. Anderson, 89 F.3d 1306, 1312 (6th Cir.1996). Since Lopez failed to renew his motion to sever at the close of evidence, we can reverse only upon a showing of plain error. Id. As a general rule, persons jointly indicted should be tried together because “there is almost always common evidence against the joined defendants that allows for the economy of a single trial.” United States v. Phibbs, 999 F.2d 1053, 1067 (6th Cir.1993). Severance should be granted “only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). “The fact that a defendant may have a better chance at acquittal if his trial were severed does not require the judge to grant his motion: the defendant must show ‘substantial,’ ‘undue,’ or ‘compelling’ prejudice.” United States v. DeFranco, 30 F.3d 664, 669-70 (6th Cir.1994). Lopez argues that he was prejudiced by the admission of Roger Williams’s testimony, which would not have been admissible against Lopez in a separate trial. Williams testified that he spent time in jail with Souza and that Souza told him about his involvement in" }, { "docid": "22473487", "title": "", "text": "and Key assert that they were denied a fair trial because they were tried together with Defendant Kincaide. Both defendants Riley and Key submitted pre-trial motions for separate trials and argue on appeal the District Court erred in its decision to deny them. We review the District Court’s decision for plain error because Riley and Key failed to renew their motions at the close of evidence. See United States v. Anderson, 89 F.3d 1306, 1312 (6th Cir.1996). Under the plain error analysis, we will only “correct a plain forfeited error affecting substantial rights if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’” United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (alteration in original) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936)). Persons indicted together ordinarily should be tried together because “there is almost always common evidence against the joined defendants that allows for the economy of a single trial.” United States v. Phibbs, 999 F.2d 1053, 1067 (6th Cir.1993). Therefore, “when defendants properly have been joined ..., a district court should grant a severance under Rule 14 [of the Federal Rules of Criminal Procedure] only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). In the instant ease, both Key and Riley argue that the District Court should have predicted that defendant Kincaide’s self-representation would cause disturbances at trial, and that these disturbances would cause them irreparable prejudice. In addition, Key argues that he was prejudiced by evidence of Kincaide’s violent and deceptive conduct that was not relevant to his ease. Their arguments are without merit. The indictment charged that defendants Key, Riley, and Kin-caide conspired to distribute drugs and the record shows no evidence that could have caused impermissible prejudice and warranted separate trials. Although Kincaide conducted a rather" }, { "docid": "11283216", "title": "", "text": "could not sentence another person to death. When questioned during voir dire, the potential juror explained that under limited circumstances she would be able to sentence another person to death, but she also stated “I cannot be sure.... I cannot be sure about this.” These statements and others in the record support the district court’s conclusion that the prospective juror’s bias regarding the death penalty substantially impaired her ability to abide by her oath as a juror. The district court did not abuse its discretion in dismissing Ms. Pate. B. Severance Vialva urges that the trial court should have severed his case from Bernard’s at the penalty phase of trial. See Fed. R. Crim P. 14. According to Vialva, evidence of Bernard’s religious conversion and Christian upbringing implicitly prejudiced the jury against Vialva, who lacked comparable mitigating evidence. Vialva contends that Bernard’s mitigating evidence regarding his Christianity violated Vialva’s right to exclude consideration of religion during the penalty phase of trial. Vialva concedes that this issue must be reviewed for plain error, since he did not object to Bernard’s evidence and failed to renew an unsuccessful pretrial motion for severance. United States v. Misher, 99 F.3d 664, 669 (5th Cir.1996). Reversal may occur under the demanding plain error standard only if there was (1) clear or obvious (2) error that (3) affected Vialva’s substantial rights, and (4) failure to correct the error seriously affects the fairness, integrity or public reputation of the judicial proceedings. United States v. Olano, 507 U.S. 725, 730-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Vialva cannot satisfy the standard. No clear error attached to the district court’s failure sua sponte to sever and grant a mistrial when Bernard offered a bit of evidence of his Christian conversion. The decision to sever lies in the trial court’s discretion. Severance “should” be granted “only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants.” Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). A court’s limiting instructions will often cure" }, { "docid": "10553005", "title": "", "text": "prejudice and mandated reversal of conspiracy conviction); United States v. Rounsavall, 115 F.3d 561, 564 (8th Cir.1997) (discussing multiple conspiracy issue even though only one defendant was on trial). What is clear, however, is that in this case the co-defendants joined a unitary conspiracy to distribute crack cocaine and there was no appreciable prejudice from the evidence of the Kimble conspiracy. The evidence showed that at times the co-defendants supplied Kimble with drugs. At other times, the groups competed for the same business. The purpose of the testimony regarding the Kimble conspiracy was to show the connections between the co-defendants and how the co-defendants eon-spired together, either to supply drugs to the Kimble conspiracy or to stop their competition. That there was some overlap with, and some testimony about, Kimble’s drug dealing does not mean that there was any prejudice to the defendants in this case. Cf. United States v. Roach, 164 F.3d 403, 412 (8th Cir.1998) (stating that rival drug dealers may still be part of same overall conspiracy). V. MOTIONS TO SEVER Banks, Bradford, and Boswell argue that it was an abuse of discretion for the district court to deny their motions to sever. As the defendants have failed to prove prejudice from the denial of their motions to sever, this claim must fail. There is a preference for a joint trial when defendants are indicted together, because a joint trial promotes efficiency and eliminates the inequity of inconsistent verdicts. See Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). A district court’s denial of a motion to sever “must be upheld absent a showing of clear prejudice that indicates an abuse of discretion.” United States v. Horne, 4 F.3d 579, 590 (8th Cir.1993); see also United States v. Rodgers, 18 F.3d 1425, 1431 (8th Cir.1994) (“ ‘Severance will be allowed upon a showing of real prejudice to an individual defendant. The motion to sever is addressed to the sound discretion of the district court[.]’ ”) (quoting United States v. Miller, 725 F.2d 462, 467 (8th Cir.1984)). Here, Banks, Bradford, and Boswell" }, { "docid": "15030804", "title": "", "text": "were we to conclude that the court erred in admitting this evidence the error would not be “clear” or “obvious,” as the applicable plain error standard of review demands. See Griffin, 524 F.3d at 76 (noting that a plain error is one that is “obvious and clear under current law”). 3. Severance Pomales alone argues that the district court should have sua sponte severed his trial from that of his co-defendants. He contends that the murder evidence described above caused him unfair prejudice as, unlike Rosario, he was not directly implicated in either of the murders. Pomales, however, failed to file a severance motion before trial. “A motion to sever charges or defendants must be made before trial,” United States v. Rodríguez-Lozada, 558 F.3d 29, 45 (1st Cir.2009) (citing Fed.R.Crim.P. 12(b)(3)(D)), and “[failure to move for severance before the deadline for filing pretrial motions constitutes waiver, which may be excused only on a showing of good cause,” id. (citing Fed.R.Crim.P. 12(e)). Here, Pomales has failed to identify any cause for his failure to file a severance motion, much less good cause. B. Sentencing The appellants present a number of sentencing claims, some procedural and others substantive. Most of the alleged procedural errors concern the district court’s calculation of guideline sentencing ranges. All of the claims of procedural error involve fact-bound determinations made by the district court. Review of those issues is thus for clear error. See United States v. Olivero, 552 F.3d 34, 38 (1st Cir.2009); see also CruzRodríguez, 541 F.3d at 31-32 (drug quantity finding reviewed for clear error). We will not find clear error unless “ ‘on the entire evidence [we are] left with the definite and firm conviction that a mistake has been committed.’ ” United States v. Brown, 298 F.3d 120, 122 (1st Cir.2002) (quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). The jury found beyond a reasonable doubt that the conspiracy as a whole was responsible for one kilogram or more of heroin, five kilograms or more of cocaine, fifty grams or more of" }, { "docid": "23198306", "title": "", "text": "court abused its discretion in denying Lopez’s motion for severance. See Wacker, 72 F.3d at 1468 (denial of motion to sever reviewed for abuse of discretion). To meet the “heavy burden” required to prevail on a severance motion, “defendant must demonstrate actual prejudice [from the failure to sever] and not merely a negative spill-over effect from damaging evidence presented against eodefendants.” Id.; see also Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993) (district court should grant severance under Rule 14 only where there is serious risk that joint trial would compromise a specific trial right of one defendant or prevent jury from making reliable judgment about guilt or innocence). The defendant has pointed to no facts from which an appeals court could infer actual prejudice. Indeed, his claim appears to be nothing more than a restatement of his previously rejected argu ment that the evidence against him was insufficient to support a conviction. Mindful of the recognized value of joint trials for defendants indicted together, see Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct. 1702, 1708-09, 95 L.Ed.2d 176 (1987), as well as the district court’s cautionary instructions to the jury.on the individuality of guilt, see Zafiro, 506 U.S. at 541, 113 S.Ct. at 939, we decide that the trial court had discretion to conclude that the insignificant risk of prejudice present in this case was outweighed by the benefit of a single trial. Finally, defendant’s contention that the sentencing court miscalculated the amount of drugs attributable to him would not have availed him on direct appeal. Although the government has the burden of proving drug quantities by a preponderance of the evidence, the court of appeals reviews the sentencing court’s factual findings as to drug quantity for clear error. Wacker, 72 F.3d at 1477. To be entitled to a lower base offense level, Lopez must prove to us that the government clearly failed to introduce sufficient evidence to establish by a preponderance that at least 15 kilograms of cocaine were attributable to him. USSG § 2Dl.l(c)(3) (1995). Defendant has not" }, { "docid": "21270517", "title": "", "text": "prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 538, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Absent special circumstances, defendants indicted together should be tried together, see United States v. Brugman, 655 F.2d 540, 542 (4th Cir.1981), and this presumption is especially strong in conspiracy cases, see United States v. Chorman, 910 F.2d 102, 114 (4th Cir.1990). We review a district court’s decision to deny a motion to sever for abuse of discretion, see United States v. Jones, 356 F.3d 529, 535 (4th Cir.2004), which we will find “only where the trial court’s decision to deny a severance deprives the defendants of a fair trial and results in a miscarriage of justice,” Person v. Miller, 854 F.2d 656, 665 (4th Cir.1988) (alteration & internal quotation marks omitted). Here, the segment showing Smith speaking about “snitching” and drug dealing was admitted against Smith only. The district court admitted the second segment to show “general relationships” between the gang members. J.A. 257. In order to minimize any unfair prejudice, the court instructed the jury regarding the limited purpose of the DVD’s admissibility and added that “there’s absolutely no evidence that either Mr. Harris or Mr. Royal appears in any of the scenes ... of the DVD.” J.A. 257. Although Appellants maintain that “allowing the jury to consider any part of the video as evidence against them was improper,” Brief of Appellants at 47, they offer no reason why the behavior captured on tape would be particularly prejudicial to them, especially since the jury was specifically instructed that there was no evidence that they appeared in the video. Moreover, we know of no reason why any prejudice to them from the video would have affected their opportunity to receive a fair trial. We therefore hold that the district court acted within its discretion in denying their motion. IV. Appellants next contend that the district court committed plain error in allowing improper rebuttal argument from the government. We disagree. Royal’s defense counsel argued in closing that the prosecutor had essentially blamed Appellants for" }, { "docid": "21270516", "title": "", "text": "involvement.”); cf. United States v. Tyler, 281 F.3d 84, 92-93 (3d Cir.2002) (rejecting argument that § 1512 exceeds Congress’ authority under the Necessary and Proper Clause to the extent it allows convictions “when no federal proceeding is contemplated and when a victim did not intend to cooperate with a federal officer”). III. Royal and Harris next argue that the district court erred in denying their motion to sever their trial from Smith’s when the government introduced a particular DVD. One segment of the DVD showed Bloods members wearing gang colors and making gang hand signs. Another depicted Smith speaking about drug dealing and the importance of not “snitching” to the police. Royal and Harris maintain that the admission of the DVD prejudiced them because it was “replete with profanity, vulgarities, threats and total depravity.” Brief of Appellants at 44. We find no error. When defendants have been properly joined, severance is proper “only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 538, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Absent special circumstances, defendants indicted together should be tried together, see United States v. Brugman, 655 F.2d 540, 542 (4th Cir.1981), and this presumption is especially strong in conspiracy cases, see United States v. Chorman, 910 F.2d 102, 114 (4th Cir.1990). We review a district court’s decision to deny a motion to sever for abuse of discretion, see United States v. Jones, 356 F.3d 529, 535 (4th Cir.2004), which we will find “only where the trial court’s decision to deny a severance deprives the defendants of a fair trial and results in a miscarriage of justice,” Person v. Miller, 854 F.2d 656, 665 (4th Cir.1988) (alteration & internal quotation marks omitted). Here, the segment showing Smith speaking about “snitching” and drug dealing was admitted against Smith only. The district court admitted the second segment to show “general relationships” between the gang members. J.A. 257. In order to minimize" }, { "docid": "22070913", "title": "", "text": "“trap” houses. They did a high volume of small quantity sales, typified by “dime rocks” of cocaine — $10 rocks with an estimated weight of .125 grams. Appellants were jointly tried, along with Roberto Garcia, in July 1998. After a two- and-a-half-week trial, the jury returned a verdict acquitting Garcia and finding the remaining defendants (Appellants) guilty on all counts. The district court overruled Appellants’ objections to the Pre-Sentence Investigation Reports (“PSRs”) prepared by the United States Probation Office, adopted the PSRs’ findings and sentencing recommendations and sentenced Appellants as follows: DISCUSSION A. Motion for Severance Rosalinda Miranda moved to sever her trial from the trial of her co-defendants claiming that the other defendants could raise defenses inconsistent and antagonistic to her own, and that she would be prohibited from calling them as witnesses. She also stated that she would be prejudiced by the spillover effect of evidence incriminating her co-defendants. The government filed a response, arguing that joinder was permitted under Federal Rules of Criminal Procedure 8 and 14. The district court denied the motion, finding that Rosalinda Miranda had not demonstrated compelling prejudice or shown that a limiting instruction would not protect her interests. We review the district court’s denial of severance for abuse of discretion. Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). We have noted that “persons indicted together should be tried together, especially in conspiracy cases.” United States v. Neal, 27 F.3d 1035, 1045 (5th Cir.1994) (citations omitted). However, separate trials should be granted when “there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539,113 S.Ct. 933. We are not convinced that Rosalinda Miranda suffered undue prejudice as the result of spillover of evidence offered against her co-defendants. The district court clearly instructed the jurors to give separate consideration to the evidence as to each defendant. The jury is presumed to have been able to follow these instructions and, indeed," }, { "docid": "23284200", "title": "", "text": "the government’s DNA evidence against Hodges. On the other hand, argument of counsel is not evidence and is not to be considered as such by the jury. United States v. Mota, 598 F.2d 995, 1000 (5th Cir.1979). In the present case, the judge instructed the jury “that any statements, objections or arguments made by the lawyers are not evidence.” Such instructions generally cure any prejudice from counsel’s statements. See, e.g., Soto, 591 F.2d at 1101. There are other reasons that convince us there was no plain error. First, the joint trial complied with the principle “that persons indicted together should be tried together, especially in conspiracy cases.” Pofahl, 990 F.2d at 1483. Second, “Rule 14 leaves the determination of risk of prejudice and any remedy that may be necessary to the sound discretion of the district courts.” Zafiro v. United States, 506 U.S. 534, 541, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Third, the trial court was entitled to consider not only the prejudice to Hodges, but also “the government’s interest in judicial economy and ... the ways in which it can lessen the prejudice by other means.” United States v. Crawford, 581 F.2d 489, 491 (5th Cir.1978). Fourth, the trial court gave multiple appropriate limiting instructions to the jury that cured any prejudice. See United States v. Matthews, 178 F.3d 295, 299 (5th Cir.1999). Fifth, even if Hodges were correct that Thomas presented a mutually antagonistic defense, such defenses are not per se prejudicial. Zafiro, 506 U.S. at 538, 113 S.Ct. 933. For these reasons, the district court did not abuse its discretion in denying severance and a mistrial. III. Challenge to Deal v. United States Both defendants argue that their second or subsequent weapons convictions under 18 U.S.C. § 924(c)(1)(C)(i) should not have been stacked to create sentences totaling over 100 years each. Thomas states that second or subsequent weapons convictions “should not be applied to multiple findings of guilt under a single indictment charging an ongoing series of offenses.” They acknowledge the Supreme Court has rejected their argument. Deal v. United States, 508 U.S. 129, 113 S.Ct." }, { "docid": "2419615", "title": "", "text": "See Brown, 944 F.2d at 1387-88 (rejecting challenge to sufficiency because evidence supported inference that defendant knew source of proceeds was drug transactions); Jackson, 935 F.2d at 839-40 (explaining that statute requires only that govern ment prove funds involved were derived at least in part from “specified unlawful activities”). Next, Shorter argues that the district court erred in refusing to grant him a severance. The problems arising out of such motion[s] for separate trial frequently confront the courts in conspiracy cases, where the general rule has evolved that persons jointly indicted should be tried together, particularly so where the indictment charges a conspiracy or a crime which may be proved against all the defendants by the same evidence and which results from the same or a similar series of acts. United States v. Echeles, 352 F.2d 892, 896 (7th Cir.1965) (citations omitted). “There is a preference in the federal system for joint trials of defendants who are indicted together.” Zafiro v. United States, — U.S. —, —, 113 S.Ct. 933, 937, 122 L.Ed.2d 317 (1993). Reviewing courts defer to the trial court’s evaluation of the need for severance. See Zafiro, — U.S. at —, 113 S.Ct. at 938 (explaining that even a showing of prejudice does not mandate severance and “leav[ing] the tailoring of relief to be granted, if any to the district court’s sound discretion”). A defendant can obtain a severance only by showing that a fair trial could not be had jointly. Novak, 870 F.2d at 1354. That a separate trial may create a better chance of acquittal does not warrant severance. Zafiro, — U.S. at —, 113 S.Ct. at 938; Novak, 870 F.2d at 1354; Oxford, 735 F.2d at 279. “In ruling on a motion for severance, the district court must balance the benefit of judicial efficiency in a joint trial with the risk of prejudice to the defendant.” United States v. Donovan, 24 F.3d 908, 914-15 (7th Cir.), cert. denied, — U.S. —, 115 S.Ct. 269, 130 L.Ed.2d 187 (1994); see also United States v. McAnderson, 914 F.2d 934, 949 (7th Cir.1990) (explaining that district courts" }, { "docid": "22070914", "title": "", "text": "motion, finding that Rosalinda Miranda had not demonstrated compelling prejudice or shown that a limiting instruction would not protect her interests. We review the district court’s denial of severance for abuse of discretion. Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). We have noted that “persons indicted together should be tried together, especially in conspiracy cases.” United States v. Neal, 27 F.3d 1035, 1045 (5th Cir.1994) (citations omitted). However, separate trials should be granted when “there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539,113 S.Ct. 933. We are not convinced that Rosalinda Miranda suffered undue prejudice as the result of spillover of evidence offered against her co-defendants. The district court clearly instructed the jurors to give separate consideration to the evidence as to each defendant. The jury is presumed to have been able to follow these instructions and, indeed, its finding of “not guilty” as to Garcia demonstrates the validity of that presumption. Neal, 27 F.3d at 1045 (stating that “the jury’s ‘not guilty’ verdicts as to some defendants demonstrate that the jurors followed the district court’s instructions and considered the evidence separately as to each defendant\"). Likewise, we find no merit in Rosalinda Miranda’s claim that she was prejudiced by being denied the opportunity to challenge statements made in taped phone conversations because her co-defendants did not take the stand at trial. While not entirely clear, Rosalinda Mi randa appears to be claiming that, had she been able to cross-examine her co-defendants, they would have testified that she was not the “Rosa” that was mentioned in the phone conversations. To warrant severance based on the exculpatory testimony of a co-defendant, a defendant must show “(1) a bona fide need for the testimony; (2) the substance of the testimony; (3) its exculpatory nature and effect; and (4) that the co-defendant would in fact testify if the severance were granted.” United States v. Nutall, 180" } ]

[ { "docid": "23646701", "title": "", "text": "that there is no such presumption operative at MIB. Visually impaired persons have held supervisory and nonmanual labor positions at MIB in the past and continue to do so today. Even if there were some “presumption” as to the inability of these people to hold such positions, it obviously is “rebuttable,” as demonstrated by the past and present employment of the visually impaired in those positions. Second, named plaintiffs allege that MIB’s treatment of the visually impaired as being unfit for supervisory and nonmanual labor positions creates “an arbitrary, discriminatory, and unreasonable classification” that violates their rights to equal protection of the laws. An examination of the record indicates that in making its promotion decisions for supervisory and nonmanual labor positions MIB is concerned with the safety of its employees and with the workmanlike performance of the contractual relationships from which it earns income to sustain its operations. Named plaintiffs do not appear to contend that MIB’s alleged policy bears no rational relationship to those legitimate governmental concerns. Rather, they contend that “the physically handicapped are a suspect classification of our population and any state discrimination against the handicapped must be subjected to the strict scrutiny test under the Equal Protection Clause of the Fourteenth Amendment.” Named plaintiffs’ request for strict judicial scrutiny under the equal protection clause is misplaced. No court has ever declared that handicapped persons constitute a suspect class for purposes of equal protection analysis, and we decline to do so today. Since neither can they claim the benefits of a suspect classification nor were they subjected to the deprivation of any fundamental constitutional right, see San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), the only inquiry is whether MIB’s alleged classification scheme is “rationally related to the [state agency’s] objective.” Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 315, 96 S.Ct. 2562, 2568, 49 L.Ed.2d 520 (1976). “The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the [state agency’s] objective.” McGowan v. Maryland, 366 U.S. 420, 425," } ]

[ { "docid": "13756759", "title": "", "text": "(10th Cir.2001). Summary judgment is proper only if the evidence, reviewed in the light most favorable to the party opposing the motion, demonstrates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). B. The Appropriate Level of Fourteenth Amendment Scrutiny Save Palisade argues that Colorado’s decision to provide the initiative power to home rule counties but not statutory counties is subject to strict scrutiny under the Fourteenth Amendment’s Equal Protection Clause. U.S. Const, amend. XIV, § 1 (“No state shall ... deny to any person within its jurisdiction the equal protection of the laws.”)- If strict scrutiny applies, Colorado’s statute must be narrowly tailored to further a compelling government interest. Goetz v. Glickman, 149 F.3d 1131, 1140 (10th Cir.1998). If no heightened scrutiny applies, the statute need only be rationally related to a legitimate government purpose. Kinnell v. Graves, 265 F.3d 1125, 1128 (10th Cir.2001). We subject governmental classifications to strict scrutiny under the Equal Protection Clause only if they target a suspect class or involve a fundamental right. Goetz, 149 F.3d at 1140. 1. Suspect Class When legislation categorizes persons based on suspect classifications, such as race and national origin, we apply strict scrutiny. Okla. Educ. Ass’n v. Alcoholic Beverage Laws Comm’n, 889 F.2d 929, 932 (10th Cir.1989). When legislation categorizes persons based on “quasi-suspect” classifications, such as gender and illegitimacy, we apply intermediate scrutiny. Id. Finally, when legislation categorizes persons on the basis of a non-suspect classification, we apply rational basis review. Id. In deciding whether to recognize additional classifications as suspect, courts traditionally look to see if the classification is “based on characteristics beyond an individual’s control,” id., and whether the class is “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). The classification here is statutory" }, { "docid": "3411039", "title": "", "text": "York State Association for Retarded Children, Inc. v. Carey, 466 F.Supp. at 486; Kruse v. Campbell, 431 F.Supp. 180 (E.D.Va.), vacated and remanded, 434 U.S. 808, 98 S.Ct. 38, 54 L.Ed.2d 65 (1977). Fourteenth Amendment [7] In view of our findings under the statutes and regulations, we turn only briefly to one of the constitutional issues relevant to this application. Plaintiffs assert that the Board’s segregation of only mentally retarded carriers of hepatitis B violates their rights to equal protection of the laws and that strict scrutiny analysis is appropriate because, inter alia, mentally retarded children are a suspect class. The definition of a suspect class for purposes of equal protection analysis was enunciated in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16 (1973), as: [a] class . . . saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. • See also United States v. Carolene Products Co., 304 U.S. 144, 153 n.4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). Courts have not consistently applied a single equal protection standard to handicapped individuals. In Gurmankin v. Costanzo, 411 F.Supp. 982, 992 n.8 (E.D.Pa.1976), aff’d, 556 F.2d 184 (3d Cir. 1977), the claim that blind persons constitute a suspect class was rejected on the ground that “[ujnlike distinctions based on race or religion, classifications based on blindness often can be justified by the different abilities of the blind and the sighted.” On the other hand, in Fialkowski v. Shapp, 405 F.Supp. 946, 959 (E.D.Pa.1975), Judge Huyett suggested that the criteria set forth in Rodriguez for determining a suspect classification could certainly be read to include retarded children. Retarded children are precluded from the political process and have been neglected by state legislatures. Moreover, the label “retarded” might bear as great a stigma as any racial slur. Accord: Interest of G.H., 218 N.W.2d 441, 446-47 (Sup.Ct.N.D.1974). While Judge Huyett’s reasoning ip Fialkowski is appealing, we believe it is" }, { "docid": "5199258", "title": "", "text": "characterization.” Under the Fourteenth Amendment’s Equal Protection Clause, a law that treats a suspect classification of people differently than similarly situated individuals is subject to heightened scrutiny. See Gilmore v. Cnty. of Douglas, Neb., 406 F.3d 935, 937 (8th Cir.2005). A class may be found suspect if the class shares “an immutable characteristic determined solely by the accident of birth,” Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), or is “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process,” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Courts considering claims that smokers constitute a suspect or quasi-suspect class have rejected them, noting “that smokers as a class lack thefse] typical characteristics that traditionally have triggered heightened scrutiny when the governmental action targets a group.” N.Y.C. C.L.A.S.H., Inc. v. City of New York, 315 F.Supp.2d 461, 482 (S.D.N.Y.2004); see also Giordano v. Conn. Valley Hosp., 588 F.Supp.2d 306, 313-14 (D.Conn.2008). Unlike the suspect or quasi-suspect classifications of race, alienage, national origin, or gender, see City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440-41, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), we conclude that smokers do not share some immutable characteristic beyond their control and they do not require special protection by the courts because of vast discrimination against smokers or their political powerlessness. Nor could we plausibly find to the contrary based upon this complaint. Gallagher pled only a single fact in his complaint regarding smokers belonging to a suspect class — a reference to one advertisement describing smokers as “persecuted.” Because Gallagher did not plead facts plausibly indicating that smokers constitute a suspect or quasi-suspect class, the district court did not err in dismissing this claim. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. C. Rational Basis Review Where a law neither implicates a fundamental right nor involves a suspect or quasi-suspect classification, the law must" }, { "docid": "5067799", "title": "", "text": "their handicap rather than their homelife. Plaintiffs do allege that residential placement was recommended on the basis of their handicaps. See Complaint ¶¶ 7-12 (No. 79 C 5383 filed Dec. 21, 1979). Finally, defendants contend that the holding in Tatro v. Texas, 481 F.Supp. 1224 (N.D.Tex.1979) applies here. In that case, Judge Higginbotham found that the Rehabilitation Act does not require a school to provide catheterization to a student. That case is factually distinguishable. Catheterization is a medical, non-diagnostic procedure, not considered a related service under HEW’s regulations. While it may enhance a student’s ability to learn, it is not a prerequisite. Here, plaintiffs contend that without therapeutic counseling, they are unable to receive an appropriate education. Tatro, therefore, is not applicable. In short, the court has considered carefully whether plaintiffs have stated a claim for relief under the Rehabilitation Act. The court concludes that they have. Accordingly, defendants’ motion to dismiss that claim is denied. C. Equal Protection Relying on San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), defendants assert that Rule 3.21 does not violate the Equal Protection Clause because it neither involves invidious discrimination against a suspect class nor impinges a fundamental right. In Rodriguez, the Supreme Court held that the Texas system of financing public education did not violate the Equal Protection Clause. The Court refused to apply the “strict scrutiny” standard of review to the challenged system of financing. To apply such a standard, there must be a showing that the law either discriminates against a suspect class or impinges a fundamental right. The Court cited the traditional characteristics of a suspect class: it has been “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” 411 U.S. at 28, 93 S.Ct. at 1293. Another mark of a suspect class is possession of “an immutable characteristic determined solely by the accident of birth [which] frequently bears no relation to ability to perform or" }, { "docid": "23265954", "title": "", "text": "Cir.2002). If it does either of these things, then the legislation must survive more demanding scrutiny. Normally, this means that it must be tailored narrowly to facilitate a compelling state interest. See Krislov v. Rednour, 226 F.3d 851, 863 (7th Cir.2000). If no fundamental rights or suspect categories are at issue, “[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). St. John’s first tries to repackage its free exercise argument in equal protection language, by claiming that the new § 30 unduly burdens its fundamental right freely to exercise its religion. We have already rejected the underlying point, however. “Where a plaintiffs First Amendment Free Exercise claim has failed, the Supreme Court has applied only rational basis scrutiny in its subsequent review of an equal protection fundamental right to religious free exercise claim based on the same facts.” Wirzburger v. Galvin, 412 F.3d 271, 282-83 (1st Cir.2005) (citing Johnson v. Robison, 415 U.S. 361, 375 n. 14, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974)). St. John’s also argues that the new § 30 targets a suspect class, namely, the two religious cemeteries adjacent to O’Hare. It has not fleshed out this argument particularly well. If it means to suggest that “cemeteries adjacent to O’Hare” constitute a constitutionally suspect class, we must disagree with it. A suspect class either “possesses an immutable characteristic determined solely by the accident of birth,” Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), or is one “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Although religion may fit the bill, see, e.g., City of New Orleans v." }, { "docid": "3944093", "title": "", "text": "Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 3255, 87 L.Ed.2d 313 (1985), whereas under heightened scrutiny given to a quasi-suspect class, the challenged classification must be “substantially related to a legitimate state interest.” Mills v. Habluetzel, 456 U.S. 91, 99, 102 S.Ct. 1549, 1554, 71 L.Ed.2d 770 (1982). We perceive ostensible disagreement between the parties as to the description of the class in question. The government insists the FBI’s hiring policy focuses only on homosexual conduct, not homosexual status. By that, we understand the government to be saying that it would not consider relevant for employment purposes homosexual orientation that did not result in homosexual conduct. Plaintiff rejects that distinction, suggesting that “homosexual status is accorded to people who engage in homosexual conduct, and people who engage in homosexual conduct are accorded homosexual status.” But whether or not homosexual status attaches to someone who does not — for whatever reason— engage in homosexual conduct, appellant does not claim those circumstances apply to her. The parties’ definitional disagreement is therefore irrelevant to this case. The issue presented us is only whether homosexuals, when defined as persons who engage in homosexual conduct, constitute a suspect or quasi-suspect classification and accordingly whether the FBI’s hiring decision is subject to strict or heightened scrutiny. The Supreme Court has used several explicit criteria to identify suspect and quasi-suspect classifications. In San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), the Court stated that a suspect class is one “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” Id. at 28, 93 S.Ct. at 1294. The immutability of the group’s identifying trait is also a factor to be considered. See Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583 (1973). However, the Supreme court has recognized only three classifications as suspect: race, Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967), alienage," }, { "docid": "5199257", "title": "", "text": "a “fundamental right.” The Supreme Court held the Texas statute at issue “further[ed] no legitimate state interest which c[ould] justify its intrusion into the personal and private life of the individual.” Lawrence, 539 U.S. at 578, 123 S.Ct. 2472. While the Supreme Court has recognized a fundamental right to “bodily integrity” and to engage in certain other “personal activities and decisions,” Glucksberg, 521 U.S. at 720, 727, 117 S.Ct. 2258, not “all important, intimate, and personal decisions are so protected,” id. at 727, 117 S.Ct. 2258. The alleged right to smoke in public is not so deeply rooted in the Nation’s history and tradition, and it is not implicit in the concept of ordered liberty. As such, it does not fall within the “liberty” that is specially protected by the Due Process Clause. The district court did not err in dismissing this claim. B. Suspect Classification Gallagher alternatively seeks intermediate scrutiny of the Ordinance on equal protection grounds, maintaining that smokers are a suspect or quasi-suspect class due “to discrimination, animus, stigma and second class characterization.” Under the Fourteenth Amendment’s Equal Protection Clause, a law that treats a suspect classification of people differently than similarly situated individuals is subject to heightened scrutiny. See Gilmore v. Cnty. of Douglas, Neb., 406 F.3d 935, 937 (8th Cir.2005). A class may be found suspect if the class shares “an immutable characteristic determined solely by the accident of birth,” Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), or is “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process,” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Courts considering claims that smokers constitute a suspect or quasi-suspect class have rejected them, noting “that smokers as a class lack thefse] typical characteristics that traditionally have triggered heightened scrutiny when the governmental action targets a group.” N.Y.C. C.L.A.S.H., Inc. v. City of New York, 315 F.Supp.2d 461," }, { "docid": "9830500", "title": "", "text": "situation in Maher is strikingly similar to the case at bar in that it too concerned a case where settlement was reached before disposition on the merits. . The due process claim, however, suffers a dubious status and may not be “substantial.” While the EAHCA, as construed by cases such as Grymes II, requires that the final administrative hearing or review must be conducted by an individual not employed by the state or local educational bureaucracy, such a holding is not constitutionally mandated. Clearly the Roilisons could have obtained a constitutionally impartial administrative hearing by the procedures followed by the State Department of Public Instruction. See Wolff v. McDonnell, 418 U.S. 539, 571, 94 S.Ct. 2963, 2982, 41 L.Ed.2d 935 (1973) (review committee sufficiently impartial to satisfy due process requirements although members employed by same institutions whose procedures and decisions are challenged). . The equal protection analysis would necessarily proceed as follows: since there is no fundamental right to public education, San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 44, 93 S.Ct. 1278, 1302, 36 L.Ed.2d 16 (1973), strict scrutiny could be utilized only if handicapped children constitute a suspect class. Several courts have applied the traditional rational relation test upon finding that handicapped children do not constitute a suspect class. See Colin K. v. Schmidt, 536 F.Supp. 1375, 1388 (D.R.I.1982); Turillo v. Tyson, 535 F.Supp. at 582; Sherer v. Waier, 457 F.Supp. 1039, 1048 (W.D.Mo.1978); Doe v. Roger, 480 F.Supp. 225, 230 (N.D.Ind.1979). Pursuant to such an analysis, plaintiffs could prevail on their equal protection claim only if, first, they were deprived of an educational experience or opportunity granted non-handicapped children and furthermore, such deprivation had no rational basis. Here the plaintiffs seemingly cannot satisfy the former prong because Kyle has not been prevented from attending the public school system. Moreover, given this context of a motion for attorney’s fees, I decline to make any holding with respect to whether handicapped children constitute a suspect class. . This holding, of course, does not consider the situation where the relief requested is unavailable pursuant to the EAHCA. For" }, { "docid": "13756760", "title": "", "text": "only if they target a suspect class or involve a fundamental right. Goetz, 149 F.3d at 1140. 1. Suspect Class When legislation categorizes persons based on suspect classifications, such as race and national origin, we apply strict scrutiny. Okla. Educ. Ass’n v. Alcoholic Beverage Laws Comm’n, 889 F.2d 929, 932 (10th Cir.1989). When legislation categorizes persons based on “quasi-suspect” classifications, such as gender and illegitimacy, we apply intermediate scrutiny. Id. Finally, when legislation categorizes persons on the basis of a non-suspect classification, we apply rational basis review. Id. In deciding whether to recognize additional classifications as suspect, courts traditionally look to see if the classification is “based on characteristics beyond an individual’s control,” id., and whether the class is “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). The classification here is statutory counties, in contrast to home rule counties, and citizens of the two types of counties are treated differently in Colorado. Status as a statutory county, however, has not been recognized as a suspect or quasi-suspect classification. Moreover, citizens of statutory counties lack the characteristics of a suspect class. Id. Being a statutory county is not a characteristic beyond Mesa County’s control, as it can choose to become a home rule county. Cf. Okla. Educ. Ass’n, 889 F.2d at 932. Mesa County’s citizens are free to work to effect this change. Neither the county nor its citizens claim to suffer disabilities, have a history of unequal treatment, or be politically powerless. Cf. Rodriguez, 411 U.S. at 28, 93 S.Ct. 1278. Thus, Save Palisade and its members are not entitled to heightened scrutiny on the basis of a suspect classification. 2. Fundamental Rights Even though citizens of statutory counties are not a suspect class, we will still apply strict scrutiny if the state’s classification burdens the exercise of a fundamental right guaranteed by the U.S. Constitution. Okla." }, { "docid": "18416138", "title": "", "text": "mooted the constitutional question. The existence of a constitutional right is probably difficult to prove. There is no fundamental right to a free appropriate public education. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 29-37, 93 S.Ct. 1278, 1294-1299, 36 L.Ed.2d 16 (1973). Strict scrutiny analysis therefore can be triggered only if handicapped children constitute a suspect class. At least one court has held that they do not. Sherer v. Waier, 457 F.Supp. 1039, 1047 (W.D.Mo.1978). Applying traditional scrutiny analysis, plaintiffs would have to show they were deprived of an educational opportunity granted non-handicapped children. Defendants have not prevented Christopher from attending the public school system. But it might be said that by attending public schools, non-handicapped children are enjoying an appropriate education, and that this is what Christopher has been deprived of. Be that as it may, enough has been said to establish that plaintiffs have made a substantial constitutional claim even if that claim ultimately would not have prevailed. Plaintiffs are therefore entitled to attorney’s fees to the extent they have prevailed in “an action or proceeding to enforce” their § 1983 claim. 42 U.S.C. § 1988. Plaintiffs are certainly entitled to fees for the work performed in connection with obtaining preliminary relief in this Court. The hard question is whether plaintiffs are also entitled to attorney’s fees for work performed in connection with the state administrative proceedings required by the EAHCA. The issue is whether these state administrative proceedings are “proceeding[s] to enforce” the equal protection claim. 42 U.S.C. § 1988. Plaintiffs were required to exhaust their EAHCA remedies before bringing their § 1983 action. Harris v. Campbell, 472 F.Supp. 51, 55 (E.D.Va.1979). Any other conclusion would require the court to “undertake unnecessary adjudica tion of federal constitutional questions whenever plaintiffs chose to bypass the state EAHCA proceedings. City of Mesquite v. Aladdin’s Castle, Inc., - U.S. -,-, 102 S.Ct. 1070, 1077, 71 L.Ed.2d 152 (1982). More important, to not require exhaustion would do violence to congressional intent as expressed in the EAHCA. Congress wanted these matters handled, if possible, at the local level and" }, { "docid": "8726798", "title": "", "text": "Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 8 (1972), quoted in Dart v. Brown, 717 F.2d 1491, 1498 (5th Cir. 1983); Arceneaux v. Treen, 671 F.2d 128, 131 (5th Cir.1982), is generally thought to have been germinated in United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783 n. 4, 82 L.Ed. 1234 (1938). On the current relevance of footnote 4, see Powell, Carolene Products Revisited, 82 Colum.L.Rev. 1087 (1982); Lusky, Footnote Redux: A Carolene Products Reminiscence, 82 Colum.L.Rev. 1093 (1982). . A suspect class is normally what Carolene Products, supra, n. 37, described as a \"discrete and insular\" minority. Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971). These are classes which have been \"saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.\" San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16 (1973). Included in these classifications are those based on race, McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964), national origin, Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), and alienage, compare Bernal v. Fainter, - U.S. -, 104 S.Ct. 2312, 81 L.Ed.2d 175 (1984), and Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), with Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978), and Ambach v. Norwich, 441 U.S. 68, 99 S.Ct. 1589, 60 L.Ed.2d 49 (1979). Rights are fundamental if their source, explicitly or implicitly, is the Constitution. Plyer v. Doe, 457 U.S. 202, 217 n. 15, 102 S.Ct. 2382, 2395 n. 15, 72 L.Ed.2d 786 (1982); San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 33-34, 93 S.Ct. 1278, 1296-1297, 36 L.Ed.2d 16 (1978); Dunagin v. City of Oxford, 718 F.2d 738, 752 (5th Cir.1983) (en banc). One such right, although" }, { "docid": "7297569", "title": "", "text": "classification must be based on criteria related to the statute’s objective. Disabled Am. Veterans, 962 F.2d at 141. a. Standard of Review A law which does classify people may be subject to various levels of equal protection scrutiny. Strict scrutiny is applied to acts burdening fundamental rights or targeting suspect classes. Suspect classes are those identified by race, alienage, or national origin. Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Fundamental rights include those derived explicitly or implicitly from the Constitution itself. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33-34, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). To survive strict scrutiny, a statute must be suitably tailored to serve a compelling governmental interest. Cleburne, 473 U.S. at 440, 105 S.Ct. 3249. Intermediate scrutiny has been applied to laws involving two quasi-suspect classes: legitimacy and gender. Under intermediate scrutiny, a law must be substantially related to an important governmental interest. Id. at 441, 105 S.Ct. 3249. Economic or social welfare legislation receives rational basis review. Disabled Am. Veterans, 962 F.2d at 141. Plaintiffs submit that their equal protection claim should invoke strict scrutiny because access to medically necessary and reasonable home health care is a “basic necessity,” the IPS burdens the class of indigents, and the law infringes on the elderly’s right to freely migrate. (Paper 26 at 7.) Failing that, Plaintiffs argue that a heightened level of scrutiny should pertain, as the IPS has a detrimental impact on rights verging on the fundamental or classes of persons who have suffered some societal prejudice but do not belong to suspect classes. Long Island Lighting Co. v. Cuomo, 666 F.Supp. 370, 414 (N.D.N.Y.1987). Neither strict nor intermediate scrutiny apply, as the IPS concerns no recognized suspect or quasi-suspeet class, nor any fundamental right. The IPS does not on its face classify the indigent or discriminate between states; it imposes a Medicare reimbursement scheme for all HHAs. As for Plaintiffs’ three theories, first, the Supreme Court found access to necessary and reasonable health care a “basic necessity,” but did not recognize" }, { "docid": "20117392", "title": "", "text": "the federal governments as dictated by the Commerce Clause, and violates the guarantee that “all persons similarly circumstanced shall be treated alike\" as provided by the Equal Protection Clause. Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982) (citing F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561-62, 64 L.Ed. 989 (1920)). A gaming license, or even gaming itself, may not be a constitutionally protected right. Recognition of this fact, however, does not mandate the conclusion that the United States Constitution never applies to any situation in which gaming is involved. . Under Equal Protection analysis certain classifications are considered inherently suspect. The Supreme Court has determined that statutory classifications based on race, alienage, or national origin are “so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy — a view that those in the burdened class are not as worthy or deserving as others.\" Cleburne, 473 U.S. at 440, 105 S.Ct. at 3254. These suspect classifications are “more likely than others to reflect deep-seated prejudice rather than legislative rationality in pursuit of some legitimate objective.” Plyler, 457 U.S. at 216 n. 14, 102 S.Ct. at 2394 n. 14. A \"suspect class,\" burdened with a history of prejudice and discrimination, is often powerless to instigate change in the majoritarian political process. San Antonio School District v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16 (1973); see U.S. v. Carolene Products Co., 304 U.S. 144, 152-53 n. 4, 58 S.Ct. 778, 783-84, 82 L.Ed. 1234 (1938). Accordingly, the Equal Protection Clause protects “groups disfavored by virtue of circumstances beyond their control\" from unequal legislative treatment. Plyler, 457 U.S. at 216 n. 14, 102 S.Ct. at 2394 n. 14. Appropriately, neither plaintiff Gulch Gaming, Inc. nor defendant South Dakota alleges that the statute at issue in the instant case disadvantages a \"suspect class.” . Defendant’s contention that a gaming license is not a fundamental right also has relevance under the Privileges and Immunities" }, { "docid": "10050567", "title": "", "text": "shall deny to any person within its jurisdiction the equal protection of the laws, which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982)). In evaluating legislation which allegedly denies equal protection, courts have traditionally applied either a “strict scrutiny” or “rational basis” approach. Generally, strict scrutiny applies where a fundamental right, such as privacy, marriage, voting; or suspect classification, such as one based upon race or national origin, is implicated. City of Cleburne, 473 U.S. at 441, 105 S.Ct. at 3255. See also San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 17-39, 93 S.Ct. 1278, 1288-1300, 36 L.Ed.2d 16 (1973) (discussing equal protection analysis). Where a strict scrutiny analysis is warranted, the legislation should be sustained only if it is narrowly tailored to advance a compelling state interest. Although K.S.A. 21-2511 does not implicate a suspect class, the privacy rights implicated by the statute warrant the application of strict scrutiny. Plaintiffs argue the bodily intrusion contemplated by the statute is not supported by an existing or imminent need to maintain prison security and that the interest in facilitating future criminal investigations is so uncertain that it cannot be characterized as a compelling state interest. Plaintiffs’ argument fails to recognize the relationship between the type of crimes committed by the group identified by the statute and the likelihood of recovering DNA at the scene of a crime committed by a recidivist. Rather than imposing an improper burden on a suspect class, the Kansas statute finds its focus on that group of felons who are most likely as repeat offenders to commit the type of crime in which DNA may be left. The state interest in advancing law enforcement is significant, and while the DNA databank surely will not positively identify the perpetrator of every crime, its value should not be dismissed lightly. The court finds the statute is narrowly" }, { "docid": "14013466", "title": "", "text": "F.Supp. 1104, 1112 (N.D.Cal.1979) (dicta), MSC’s refusal to fund a residential placement could not possibly violate the RHA and entitle plaintiffs to damages. Funding a residential placement would constitute affirmative conduct making available to handicapped children facilities and programs not available to non-handicapped students, thus not satisfying the first tier of the RHA test. Turillo v. Tyson, supra, at 587. Plaintiffs’ equal protection claim for damages must also fail. The plaintiffs have not fully briefed this claim, mentioning it only cursorily in their recent memoranda to this Court. However, Plaintiffs’ Memorandum on the Availability of Damages, filed on March 3, 1982, states that defendants’ violation of the equal protection clause “was the inevitable result of the Middle-town Defendants’ . . . policy or practice of placing all primarily learning disabled students in self-contained public classrooms .... Only students suffering from [other] handicapping conditions ... received any consideration for an outside placement.” Id. at 1. The Court thus assumes that plaintiffs are contending that defendants violated the equal protection clause by discriminating on the basis of different types of handicapping conditions with respect to funding of residential placements. Because education is not a fundamental right, San Antonio Ind. School District v. Rodriguez, 411 U.S. 1, 44, 93 S.Ct. 1278, 1302, 36 L.Ed.2d 16 (1973); Sandlin v. Johnson, 643 F.2d 1027, 1029 (4th Cir. 1981); Guadalupe Organization, Inc. v. Tempe Elem. School District, 587 F.2d 1022, 1026 (9th Cir. 1978), and because handicapped children do not constitute a suspect class, Sherer v. Waier, 457 F.Supp. 1039, 1048 (W.D.Mo.1978); Doe v. Roger, 480 F.Supp. 225, 230 (N.D.Ind.1979) (“seriously doubts” that mentally handicapped students constitute suspect class), MSC’s alleged “policy or practice” needs only pass the “rational basis” level of equal protection scrutiny. For purposes of plaintiffs’ motion for summary judgment, the Court will assume that defendants do not consider learning disabled children for residential placements. Indeed, the record indicates that such a policy exists. See Tr. CC at 60-71 (Feb. 6, 1980) (testimony of O. William Hilton). However, MSC’s alleged policy of providing residential placement for visually and emotionally handicapped children, see id." }, { "docid": "23649219", "title": "", "text": "§ 3304(a)(15)(A)(i) means that social security benefits are to offset unemployment benefits if the base period employer makes social security contributions. C. Equal Protection The United States Constitution generally provides that all persons similarly situated should be treated alike. Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982). “Strict scrutiny” and “rational basis” are the two traditional standards used to determine the validity of legislation that is challenged as denying equal protection. The strict scrutiny standard is applied when a classification involves a suspect class or affects a fundamental right. Suspect classifications generally include those based on race, alien-age, and national origin. City of Cleburne v. Cleburne Living Center, — U.S.-, 105 S.Ct. 3249, 3255, 87 L.Ed.2d 313 (1985). Fundamental rights include voting, privacy, freedom of association, marriage, and trav el. See generally San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 17-39, 93 S.Ct. 1278,1288-1300, 36 L.Ed.2d 16 (1973). If a statute defines a class based on a suspect category or if it infringes upon a fundamental right, it is subject to strict scrutiny and will be sustained only if it is precisely tailored to further a compelling state interest. Most other statutes except those involving gender and illegitimacy will be reviewed under the rational basis standard which starts from a presumption of validity and merely requires the classification to be rationally related to a legitimate state interest. Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 489, 97 S.Ct. 1898, 1908, 52 L.Ed.2d 513 (1977). An intermediate level of scrutiny, requiring the classification to substantially further a legitimate state interest, is applied to categories based on gender, Craig v. Boren, 429 U.S. 190, 191-204, 97 S.Ct. 451, 453-60, 50 L.Ed.2d 397 (1976) and illegitimacy, Mathews v. Lucas, 427 U.S. 495, 505, 96 S.Ct. 2755, 2762, 49 L.Ed.2d 651 (1976). Section 3304(a)(15)(A)(i) does not involve a suspect class, affect a fundamental right, nor is it based on gender or legitimacy. We conclude, therefore, that the rational basis test should be applied to determine whether the statute violates plaintiffs’ right to equal protection." }, { "docid": "18416137", "title": "", "text": "constitutional entitlement to a free appropriate public education was the basis of that agreement. But, in the other case mentioned in the Senate Report, the court held that the equal protection of the laws (as applied to the District of Columbia through the due process clause of the Fifth Amendment) required the provision of “adequate alternative educational services suited to the child’s needs, which may include special education or tuition grants.” Mills v. Board of Education, 348 F.Supp. 866, 878 (D.D.C. 1972). While Mills has been criticized, New York Association for Retarded Children v. Rockefeller, 357 F.Supp. 752, 762-764 (E.D.N.Y.1973), it has continuing vitality in the District of Columbia. See Foster v. District of Columbia Board of Education, 523 F.Supp. 1142, 1144 (D.D.C.1981); North v. District of Columbia Board of Education, 471 F.Supp. 136, 140 n.5 (D.D.C.1979). Neither the Supreme Court nor the Court of Appeals for the First Circuit have decided whether there is a constitutional right to a free appropriate public education. This is not surprising, considering that passage of the EAHCA largely mooted the constitutional question. The existence of a constitutional right is probably difficult to prove. There is no fundamental right to a free appropriate public education. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 29-37, 93 S.Ct. 1278, 1294-1299, 36 L.Ed.2d 16 (1973). Strict scrutiny analysis therefore can be triggered only if handicapped children constitute a suspect class. At least one court has held that they do not. Sherer v. Waier, 457 F.Supp. 1039, 1047 (W.D.Mo.1978). Applying traditional scrutiny analysis, plaintiffs would have to show they were deprived of an educational opportunity granted non-handicapped children. Defendants have not prevented Christopher from attending the public school system. But it might be said that by attending public schools, non-handicapped children are enjoying an appropriate education, and that this is what Christopher has been deprived of. Be that as it may, enough has been said to establish that plaintiffs have made a substantial constitutional claim even if that claim ultimately would not have prevailed. Plaintiffs are therefore entitled to attorney’s fees to the extent they have" }, { "docid": "1222660", "title": "", "text": "post-secondary education is not a fundamental constitutional right. See Plyler v. Doe, 457 U.S. 202, 221, 102 S.Ct. 2382, 2397, 72 L.Ed.2d 786 (1982) [no fundamental right to state-financed public education]; accord San Antonio' Independent School District v. Rodriguez, 411 U.S. 1, 35, 93 S.Ct. 1278, 1297, 36 L.Ed.2d 16 (1973); Hammond v. Marx, 406 F.Supp. 853, 856 (D.Me.1975). The Supreme Court recently refused to apply the “rational relationship” test in an equal protection challenge to a Texas statute withholding state funds for the education of illegal alien children. Plyer v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (5-4). After acknowledging the existence of “a substantial ‘shadow population’ of illegal immigrants — numbering in the millions — within our borders” with illegal alien children being “special members of this underclass,” 457 U.S. at 218, 102 S.Ct. at 2395, the Court selected an intermediate standard of scrutiny, requiring Texas to demonstrate a “substantial interest” in its discriminatory classification, see Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). Although the Court reiterated that public education is not a fundamental right, it concluded that complete denial of access to public education “imposes a lifetime of hardship on a discrete class of children not accountable for their disabling status[,] [and the] stigma of illiteracy.” 457 U.S. at 223, 102 S.Ct. at 2398. The present case involves no such “discrete class” or unusual “hardship”. There being no “fundamental right” or “suspect class” implicated here, the appropriate “equal protection” test is whether the residency criteria bear a rational relationship to some legitimate state interest. Lister v. Hoover, 655 F.2d 123, 127 (7th Cir.1981); Hooban v. Boling, 503 F.2d 648, 650 (6th Cir.1974) (and cases cited therein). As the Supreme Court has explained— In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it" }, { "docid": "17811149", "title": "", "text": "persons similarly situated. Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). To assess whether the University’s conduct violated this guarantee, we must determine the appropriate level of scrutiny to be applied to Toledo’s claims. Unless state action burdens a suspect class or impinges upon a fundamental right, we review equal protection claims for a rational relationship between the disparity of treatment and a legitimate government purpose. Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). The disabled are not a suspect class for equal protection purposes. City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 439, 448-50, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). In addition, public education is not a fundamental right. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). However, neither is education “merely some governmental ‘benefit’ indistinguishable from other forms of social welfare legislation.” Plyler, 457 U.S. at 221, 102 S.Ct. 2382. The Supreme Court has “repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to ‘sustaining our political and cultural heritage’ with a fundamental role in maintaining the fabric of society.” Grutter v. Bollinger, 539 U.S. 306, 331, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (quoting Plyler, 457 U.S. at 221, 102 S.Ct. 2382); see also Brown v. Bd. of Educ., 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Therefore, the Supreme Court struck down under heightened scrutiny the exclusion of a discrete group of children from a free public education offered to other resident children as violative of equal protection. Plyler, 457 U.S. at 230, 102 S.Ct. 2382. Nonetheless, aside from outright exclusion, the Supreme Court continues to employ rational basis review for classifications that burden the educational opportunities of a non-suspect class. See Kadrmas v. Dickinson Public Sch., 487 U.S. 450, 459, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988). Therefore, states may treat disabled students differently or" }, { "docid": "18899281", "title": "", "text": "day schools, with the natural and foreseeable consequences that such placement will isolate them within a racially segregated school sub-system without adequate provision for suitable education, deprive them of equal educational opportunity in violation of the 14th amendment. Plaintiffs also allege the deprivation of their rights as handicapped pupils to a minimally adequate education. It is urged that whether the Court chooses to apply strict scrutiny (finding handicapped children to constitute a suspect class) or an intermediate level of scrutiny (see G. Gunther, “The Supreme Court, 1971 Term, Forward, In Search of Evolving Doctrine in a Changing Court: A Model for a Newer Equal Protection,” 86 Harv. L. Rev. 1 (1972)), plaintiffs have been denied equal protection. Emotionally disturbed children might be characterized as a suspect class in accordance with guidelines set by the Supreme Court as follows: [a] class . . . saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. San Antonio School District v. Rodriquez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16. See Fialkowaski v. Shapp, 405 F.Supp. 946, 958-59 (E.D.Pa.1975) (retarded children). But cf. New York Assoc. for Retarded Children v. Rockefeller, 357 F.Supp. 752, 762-63 (E.D.N.Y.1973) (suggesting that the mentally retarded are not to be regarded as a suspect class). It is not necessary, however, to decide whether emotionally handicapped students should be treated as a suspect class in a constitutional sense. We deal with minority pupils who claim discrimination on the ground of race. They are entitled to suspect class treatment for that reason. The fact that these plaintiffs are emotionally disturbed children does, nevertheless, compel us to focus on the abuses to which such individuals may be subject. The importance of an equal educational opportunity for all cannot be underestimated: Today, education is perhaps the most important function of the state and local governments. . . . It is required in the performance of our most basic responsibilities . . .. It is the very" } ]

[ { "docid": "7992028", "title": "", "text": "Bushey), 210 B.R. 95, 98 (6th Cir. BAP 1997). Furthermore, a bankruptcy court’s interpretation of the Bankruptcy Code is reviewed de novo. In re Troutman Enters., 253 B.R. at 10. De novo review means that the issue is decided as if it had not been heard before. Mapother & Mapother, P.S.C. v. Cooper (In re Downs), 103 F.3d 472 (6th Cir.1996). No deference is given to the trial court’s conclusions of law. In re Eastown Auto Co., 215 B.R. 960 (citing Razavi v. Comm’r, 74 F.3d, 125 (6th Cir.1996)). III.FACTS MACS is a corporation that ceased doing business on June 30, 2004. Until then, MACS was advertising agent for various Spitzer Auto Stores (“Spitzer”), whereby it created, designed, and placed print and television broadcast advertising for Spit-zer. On October 28, 2004, WEWS, PDP, and WKYC filed an involuntary petition for relief under chapter 7 of the United States Bankruptcy Code against MACS. They listed the following claims from advertising accounts: WEWS in the amount of $43,284.25; PDP in the amount of $113,319.38; and WKYC in the amount of $12,962.50. On November 23, 2004, MACS answered that the claims were subject to a bona fide dispute and were barred by the statute of frauds. After a little over three months for discovery, on March 2, 2005, the bankruptcy court conducted an evidentiary hearing. On May 16, 2005, it entered Order Granting Involuntary Petition for Chapter 7 Relief, which sets out the court’s findings of fact and conclusions of law, and Judgment Granting Chapter 7 Relief. The court made the following findings of fact based upon the stipulation of the parties and the testimony of the witnesses: 1. MACS is a for-profit corporation organized under Ohio law in April 1993 and operated as an advertising agency, with its business office at 122 Western Ave., Akron, Ohio. (Stip-¶ 2, 3.) 2. Stuart Moss is the statutory agent for MACS and was its president through June 30, 2004, at which point the company ceased doing business. (Stip-¶ 4,12.) 3. MACS was an advertisement agent for various Spitzer Auto Stores (“Spitzer”) through June 30, 2004," } ]

[ { "docid": "14787096", "title": "", "text": "Schramm (In re Schramm), 431 B.R. 397, 399 (6th Cir. BAP 2010) (citing Wicheff v. Baumgart (In re Wicheff), 215 B.R. 839, 840 (6th Cir. BAP 1998)). The bankruptcy court’s order granting the Trustee’s motion for turnover is also a final, appealable order. Bailey v. Suhar (In re Bailey), 380 B.R. 486, 488 (6th Cir. BAP 2008). The bankruptcy court’s conclusions of law are reviewed de novo. Darrohn v. Hildebrand (In re Darrohn), 615 F.3d 470, 474 (6th Cir.2010). The bankruptcy court’s application or interpretation of state law is a conclusion of law. In re Schramm, 431 B.R. at 399. “Interpretation of a state’s exemption statute involves a question of law and is reviewed de novo.” Id. “Under a de novo standard of review, the reviewing court decides an issue independently of, and without deference to, the trial court’s determination.” Menninger v. Accredited Home Lenders (In re Morgeson), 371 B.R. 798, 800 (6th Cir. BAP 2007). Essentially, the reviewing court decides the issue “as if it had not been heard before.” Mktg. & Creative Solutions, Inc. v. Scripps Howard Broad. Co. (In re Mktg. & Creative Solutions, Inc.), 338 B.R. 300, 302 (6th Cir. BAP 2006) (citation omitted). “No deference is given to the trial court’s conclusions of law.” Id. (citations omitted). III.FACTS On July 3, 2009, James Mark Wengerd and Cheryl Sue Wengerd (“Debtors”) filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code. At that time, the Debtors resided at 14654 Du-quette Ave., N.E., Hartville, Ohio 44632 in a home that they had owned since March 14, 1995. The fair market value of the home was listed on Schedule A as $205,000.00 with secured debt of $164,978.92. Pursuant to Ohio Revised Code § 2329.66(A)(1), the Debtors claimed a homestead exemption in the amount of $40,400.00. On May 27, 2009, prior to filing their petition for relief, the Debtors entered into a contract to sell their home for $205,000. They did not disclose the pending sale of their home in their petition, nor did they list the contract to sell on Schedule E, which requires the" }, { "docid": "19896052", "title": "", "text": "1998) (citing Myers v. IRS (In re Myers), 216 B.R. 402, 403 (6th Cir. BAP 1998)). “De novo means that the appellate court determines the law independently of the trial court’s determination.” In re Ravenswood Apartments, Ltd., 338 B.R. 307, 310 (6th Cir. BAP 2006) (quoting Treinish v. Norwest Bank Minn., N.A. (In re Periandri), 266 B.R. 651, 653 (6th Cir. BAP 2001)); see also In re Mktg. & Creative Solutions, Inc., 338 B.R. 300, 302 (6th Cir. BAP 2006) (“De novo review means that the issue is decided as if it had not been heard before.”) (citing In re Downs, 103 F.3d 472 (6th Cir.1996)); Fields v. Sallie Mae Servicing Corp. (In re Fields), 326 B.R. 676, 678 (6th Cir. BAP 2005) (“De novo review requires the Panel to review questions of law independent of the bankruptcy court’s determination.”) (quoting In re Eubanks, 219 B.R. 468, 469 (6th Cir. BAP 1998)). “No deference is given to the trial court’s conclusions of law.” In re Eastown Auto Co., 215 B.R. 960, 964 (6th Cir. BAP 1998). See also In re Eagle-Picher Indus., Inc., 447 F.3d 461 (6th Cir.2006) (conclusions of law are reviewed de novo). III. FACTS On September 6, 2002, an order for relief under chapter 7 of the Bankruptcy Code was entered against R.W. Leet Electric, Inc., an electrical construction contractor (the “Debtor”). On August 16, 2004, the chapter 7 trustee, Marcia R. Meoli (“Trustee”), commenced the present adversary proceeding against Kendall Electric, Inc. (“Kendall”), an electrical materials supplier, to recover as preferential fourteen payments totaling $321,878.49 made by the Debtor to Kendall during the ninety-day preference period. In its answer to the complaint, Kendall generally denied all of the statutory elements of a preference. Additionally, Kendall specifically asserted that the payments it had received from the Debtor had not been property of the Debtor because the monies were trust funds under the MBCFA, Mich. Comp. Laws Ann. §§ 570.151-.153. There after, on February 24, 2006, Kendall moved for summary judgment on that basis, supported by the affidavit of Judith M. Gates, the credit manager of Kendall. Ms." }, { "docid": "3877869", "title": "", "text": "For purposes of appeal, a final order “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations omitted). The bankruptcy court’s order sustained Green Tree’s objection to confirmation and directed the Debtors to file an amended plan within 20 days. The bankruptcy court’s order neither confirmed the Debtors’ plan nor dismissed the chapter 13 case. Generally, an order which neither confirms a plan nor dismisses the underlying case is not final. See WCI Steel, Inc. v. Wilmington Trust Co., 338 B.R. 1 (N.D.Ohio 2005); see also Jefferson Fin. Servs. v. Hance (In re Hance), 234 F.3d 1268, 2000 WL 1478390 (6th Cir.2000) (un-pub. table decision) (finding lack of jurisdiction where confirmation of chapter 13 plan denied and notice of appeal filed before plan was confirmed). The Debtors properly filed a motion for leave to appeal an interlocutory order pursuant to 28 U.S.C. § 158(a) and Rule 8003 of the Federal Rules of Bankruptcy Procedure. This Panel granted that motion on September 21, 2007. This appeal presents a discrete legal question. A bankruptcy court’s conclusions of law are reviewed de novo. Adell v. John Richards Homes Bldg. Co. (In re John Richards Homes Bldg. Co.), 439 F.3d 248, 254 (6th Cir.2006); Mapother & Mapother, PSC v. Cooper (In re Downs), 103 F.3d 472, 476-77 (6th Cir. 1996); Cluxton v. Fifth Third Bank (In re Cluxton), 327 B.R. 612 (6th Cir. BAP 2005). “De novo review means that the appellate court determines the law independently of the trial court’s determination.” Treinish v. Norwest Bank Minn., N.A. (In re Periandri), 266 B.R. 651, 653 (6th Cir. BAP 2001). III. FACTS The Debtors are the owners of real property located in Clermont County, Ohio. They are also owners of a titled 1996 Commodore Mobile Home (the “Mobile Home”), having purchased it after Green Tree repossessed it from a prior title owner. The record is unclear whether the Mobile Home is permanently affixed to the real property. The" }, { "docid": "19882710", "title": "", "text": "re Geberegeorgis), 310 B.R. 61, 63 (6th Cir. BAP 2004) (“[A]n order that concludes a particular adversarial matter within the larger case should be deemed final and reviewable in a bankruptcy setting.”) (citations omitted). The bankruptcy court’s legal conclusion that the transfer at issue constituted an avoidable fraudulent conveyance is reviewed de novo. See Stevenson v. J.C. Bradford & Co. (In re Cannon), 277 F.3d 838, 849 (6th Cir.2002) (citations omitted). “Questions of standing ... are [also] reviewed de novo.” SPC Plastics Corp. v. Griffith (In re Structurlite Plastics Corp.), 224 B.R. 27, 29 (6th Cir. BAP 1998). “De novo means that the appellate court determines the law independently of the trial court’s determination.” Treinish v. Norwest Bank Minn., N.A. (In re Periandri), 266 B.R. 651, 653 (6th Cir. BAP 2001) (citation omitted). The bankruptcy court’s determination that the challenged transfer involved property of the Debtor is a factual finding that must be upheld on appeal unless it is clearly erroneous. Westgate Vacation Villas, Ltd. v. Tabas (In re Int’l Pharmacy & Discount II, Inc.), 443 F.3d 767, 771 (11th Cir.2005) (citations omitted). A factual determination is clearly erroneous “when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Bailey v. Bailey (In re Bailey), 254 B.R. 901, 903 (6th Cir. BAP 2000) (citations and internal quotations omitted). III. FACTS The facts of this case are complicated, highly suspicious, and largely undisputed. The Debtor and her ex-husband, Greg Forbes, were divorced in 1995. No spousal support was awarded under the parties’ judgment of divorce, and Greg Forbes has never been under any legal obligation to support the Debtor. After their divorce, the Debtor and Greg Forbes remained co-owners of an airplane canopy manufacturer called Flight Materials, Inc. (“Flight Materials”). The Debtor served as President of the corporation. The record contains no written documentation of the Debtor’s ownership interest in Flight Materials nor of Greg Forbes’ ownership interest for that matter. However, both the Debtor and Greg Forbes testified that the Debtor" }, { "docid": "16170745", "title": "", "text": "v. Aztec P’ship, 1997 WL 674659 at *4 (Ohio Ct.App. Oct. 31, 1997) (internal quo tation marks omitted), appeal dismissed, 81 Ohio St.3d 1410, 688 N.E.2d 525 (1998). A notary public is a public officer, and “[t]he rule is generally accepted that, in the absence of evidence to the contrary, public officers ... will be presumed to have properly performed their duties and not to have acted illegally but regularly and in a lawful manner.” State ex rel. Boccuzzi v. Cuyahoga Cty. Bd. of Commrs., 112 Ohio St.3d 438, 860 N.E.2d 749, 753 (2007) (internal quotation marks omitted). In light of the presumption that the notary public properly performed her duties, the Court finds — as an irresistible inference of her statement that the Roberts were the persons who executed the Mortgage in her presence — that the notary public had satisfactory evidence of the Roberts’s identities. Accordingly, under the Ohio Supreme Court’s Brown decision, the Court concludes that the notary public certified that she had satisfactory evidence of the Roberts’s identities and that the Acknowledgment therefore met the § 147.53(B) certification requirement. In Geygan v. World Savs. Bank, FSB (In re Nolan), 383 B.R. 391, 395 (6th Cir. BAP 2008), the Bankruptcy Appellate Panel for the Sixth Circuit (“BAP”) ruled on the meaning of another phrase used in a certification in lieu of “acknowledged before me.” The BAP held that the phrase in that case, “witness my hand,” indicated only that the notary public “observed the signing of the document by another individual” and failed to indicate that the notary public had satisfactory evidence of the identity of that individual. See Nolan, 383 B.R. at 395. The Nolan court also held that the reference to an attached notary acknowledgment “suggested] that there was no intention to rely on the words ‘witness my hand’ as an acknowledgment and that the parties intended to attach a formal acknowledgment.” Nolan, 383 B.R. at 396. The Court also noted that the certificate of acknowledgment failed to include the name of the mortgagors. See Nolan, 383 B.R. at 396. In the instant case, the" }, { "docid": "7968638", "title": "", "text": "(all finding appealable orders denying motions to compel assumption or rejection on basis that contracts were not executory). The United States District Court for the Southern District of Ohio has authorized appeals to the Bankruptcy Appellate Panel, and neither party has timely elected to have this appeal heard by the district court. 28 U.S.C. §§ 158(b)(6), (c)(1). Accordingly, the Panel has jurisdiction to decide this appeal. Since the Appellants claim that the order denying their motion represents an error of law, the order is reviewed de novo. E.g., Corzin v. Fordu (In re Fordu), 201 F.3d 693, 696 n. 1 (6th Cir.1999). “De novo means that the appellate court determines the law independently of the trial court’s determination.” Treinish v. Norwest Bank Minn., N.A. (In re Periandri), 266 B.R. 651, 653 (6th Cir. BAP 2001). III. FACTS In November 1996, Ravenswood Apartments, Ltd. (the “Debtor”) and James F. O’Brien, Trustee (“O’Brien”) entered into a land installment contract (the “Contract”). Under the Contract, O’Brien agreed to sell an 82-unit apartment complex located in Cincinnati, Ohio (the “Property”), to the Debtor. The total purchase price, $3,415,000, was to be paid by the Debtor in monthly installments of approximately $27,000, with any remaining balance to be entirely due on November 1, 2020. Upon payment of the full purchase price, O’Brien was to convey title of the Property to the Debtor. Beginning in the early 2000s, a variety of factors caused increased vacancies at the apartment complex, resulting in several years of financial difficulty for the Debt- or. Eventually, on April 28, 2004, the Appellants filed suit against the Debtor in an Ohio state court. The Appellants’ state court complaint alleged various defaults under the Contract and sought, among other things, specific performance of the Contract, damages for breach of the Contract, and “restitution of [Appellants’] possession” of the Property. (J.A. at 132.) Soon thereafter, on July 22, 2004, the Debtor filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code. On August 17, 2004, the Appellants filed a motion to compel the Debtor to make payments under the Contract in" }, { "docid": "23534303", "title": "", "text": "United States District Court for the Northern District of Ohio has authorized appeals to the appellate panel. A final order of a bankruptcy court may be appealed by right under 28 U.S.C. § 158(a)(1). The bankruptcy court’s order granting summary judgment, which is a final order, presents a conclusion of law that is reviewed de novo. Myers v. IRS (In re Myers), 216 B.R. 402, 403 (6th Cir. BAP 1998), aff'd, 196 F.3d 622 (6th Cir.1999). “De novo means that the appellate court determines the law independently of the trial court’s determination.” Id. (quoting Corzin v. Fordu (In re Fordu), 209 B.R. 854, 857 (6th Cir. BAP 1997)). “No deference is given to the trial court’s conclusions of law.” Booher Enters. v. Eastown Auto Co. (In re Eastown Auto Co.), 215 B.R. 960, 964 (6th Cir. BAP 1998) (citation omitted). III.Facts Norwest is the holder of a first mortgage on Mr. Periandri’s (“Debtor”) residence. The mortgage was executed by the Debtor on March 31, 1997. On February 13, 1998, Norwest commenced a foreclosure action against the Debtor in state court, which was stayed upon the filing of the Debtor’s Chapter 13 bankruptcy case on May 11, 1999. The Chapter 13 case was then converted to a case under Chapter 7 on March 10, 2000, and Mr. Treinish, the appellant (“trustee”), was appointed as the case trustee. The foreclosure action is unresolved and is still pending in the state court. After the first meeting of creditors, the Chapter 7 trustee filed a complaint pursuant to 11 U.S.C. § 544(a)(3) to determine the validity of Norwest’s mortgage and to set the mortgage aside as improperly executed. The complaint alleged that the Debtor’s signature on the mortgage instrument was witnessed by only one person in violation of Ohio Rev.Code § 5301.01 , thus rendering the mortgage defective and avoidable by the trustee standing in the shoes of a bona fide purchaser. The trustee’s complaint was met with a motion for summary judgment contending that, pursuant to Ohio’s lis pendens statute, the state court foreclosure action provided constructive notice to the trustee, thus preventing" }, { "docid": "7968637", "title": "", "text": "OPINION GREGG, Bankruptcy Judge. James F. O’Brien, Trustee, Robert S. Corbly, Glen A. Bums and Carol Burns (the “Appellants”) appeal the bankruptcy court’s order denying their motion to compel the Debtor to make payments under a land installment contract and to assume or reject the contract within a specified time period. For the reasons that follow, we find that the land installment contract is executory under controlling Sixth Circuit precedent and Ohio law and REVERSE the order of the bankruptcy court. I. ISSUE ON APPEAL The sole issue on appeal is whether the land installment contract is an “executory contract” within the meaning of 11 U.S.C. § 365. II. JURISDICTION AND STANDARD OF REVIEW The bankruptcy court’s order constitutes a final order, which may be appealed as of right. 28 U.S.C. § 158(a)(1); Stevens v. CSA, Inc., 271 B.R. 410, 413 (D.Mass.2001); Enter. Energy Corp. v. United States (In re Columbia Gas Sys., Inc.), 146 B.R. 106, 110-11 (D.Del.1992), aff'd, 50 F.3d 233 (3d Cir.1995); In re Heston Oil Co., 69 B.R. 34, 35-36 (N.D.Okla.1986) (all finding appealable orders denying motions to compel assumption or rejection on basis that contracts were not executory). The United States District Court for the Southern District of Ohio has authorized appeals to the Bankruptcy Appellate Panel, and neither party has timely elected to have this appeal heard by the district court. 28 U.S.C. §§ 158(b)(6), (c)(1). Accordingly, the Panel has jurisdiction to decide this appeal. Since the Appellants claim that the order denying their motion represents an error of law, the order is reviewed de novo. E.g., Corzin v. Fordu (In re Fordu), 201 F.3d 693, 696 n. 1 (6th Cir.1999). “De novo means that the appellate court determines the law independently of the trial court’s determination.” Treinish v. Norwest Bank Minn., N.A. (In re Periandri), 266 B.R. 651, 653 (6th Cir. BAP 2001). III. FACTS In November 1996, Ravenswood Apartments, Ltd. (the “Debtor”) and James F. O’Brien, Trustee (“O’Brien”) entered into a land installment contract (the “Contract”). Under the Contract, O’Brien agreed to sell an 82-unit apartment complex located in Cincinnati, Ohio (the" }, { "docid": "23534302", "title": "", "text": "OPINION WILLIAM HOUSTON BROWN, Bankruptcy Appellate Panel Judge. The Chapter 7 trustee appeals the bankruptcy court’s order granting summary judgment to Norwest Bank Minnesota, N.A. (“Norwest”) based on Ohio’s lis pen-dens statute, Ohio Rev.Code § 2703.26. The bankruptcy court’s order assumes that the Chapter 7 trustee could not obtain the status of a bona fide purchaser under Ohio law in order to avoid Norwest’s mortgage under 11 U.S.C. § 544(a)(3) due to the constructive notice provided by Norwest’s foreclosure action that was pending in state court when the bankruptcy petition was filed. For the reasons stated below, we AFFIRM the decision of the bankruptcy court. I.Issue on Appeal The issue on appeal is whether Nor-west’s pending state court foreclosure action provided constructive notice to the Chapter 7 bankruptcy trustee pursuant to Ohio’s lis pendens statute so as to prevent the trustee from obtaining the status of a bona fide purchaser under 11 U.S.C. § 544(a)(3). II.Jurisdiction and Standard of Review The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Northern District of Ohio has authorized appeals to the appellate panel. A final order of a bankruptcy court may be appealed by right under 28 U.S.C. § 158(a)(1). The bankruptcy court’s order granting summary judgment, which is a final order, presents a conclusion of law that is reviewed de novo. Myers v. IRS (In re Myers), 216 B.R. 402, 403 (6th Cir. BAP 1998), aff'd, 196 F.3d 622 (6th Cir.1999). “De novo means that the appellate court determines the law independently of the trial court’s determination.” Id. (quoting Corzin v. Fordu (In re Fordu), 209 B.R. 854, 857 (6th Cir. BAP 1997)). “No deference is given to the trial court’s conclusions of law.” Booher Enters. v. Eastown Auto Co. (In re Eastown Auto Co.), 215 B.R. 960, 964 (6th Cir. BAP 1998) (citation omitted). III.Facts Norwest is the holder of a first mortgage on Mr. Periandri’s (“Debtor”) residence. The mortgage was executed by the Debtor on March 31, 1997. On February 13, 1998, Norwest commenced a foreclosure action against" }, { "docid": "15221678", "title": "", "text": "794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations omitted). The bankruptcy court’s order finding a violation of the automatic stay is a final order. Heghmann v. Indorf (In re Heghmann), 316 B.R. 395, 400 (1st Cir. BAP 2004). The question whether damages must be awarded whenever a willful violation of the automatic stay is found to have occurred is a question of statutory interpretation and is subject to de novo review. “De novo means that the appellate court determines the law independently of the trial court’s determination.” O’Brien v. Ravenswood Apts., Ltd. (In re Ravenswood Apts., Ltd.) 338 B.R. 307, 310 (6th Cir. BAP 2006). The question of whether the bankruptcy court properly permitted Debtors’ counsel to be called as a witness is likewise a question of law subject to de novo review. III.FACTS Debtor Kenneth Perrin (“Perrin”) is employed as a professional cabinet maker. He also owns and operates a small cabinet shop on the side to earn additional income. Beginning in April 2004, Perrin rented work space from creditor Ronald Wheeler (“Wheeler”) for his cabinet shop business and outfitted the space with the necessary tools for cabinet making. On February 1, 2005, the Debtors filed their chapter 13 petition. Perrin then advised Wheeler that he had filed the petition for bankruptcy- in June 2005, Perrin ceased making rent payments for the space rented from Wheeler. On October 1, 2005, Wheeler changed the locks on the doors and refused to permit Perrin to retrieve his tools. In late October 2005, Wheeler offered to allow Perrin to retrieve his tools in exchange for payment of the outstanding rent. When Perrin arrived with less than the total amount owed, Wheeler offered to allow him to take only some of his tools. Perrin refused, leaving with his money, but not with his tools. In November 2005, Perrin contacted his counsel regarding the situation. Perrin’s counsel wrote to “Wheeler demanding return of the tools within seven days. Following receipt of this letter, Wheeler did not contact Perrin or allow him to retrieve the tools, but Wheeler did attempt to confer" }, { "docid": "8255571", "title": "", "text": "Cattle Co. v. United Producers, Inc. (In re United Producers, Inc.), 353 B.R. 507, 508 (6th Cir. BAP 2006), aff'd, 526 F.3d 942 (6th Cir.2008). The bankruptcy court’s conclusions of law are reviewed de novo. Riverview Trenton R.R. Co. v. DSC, Ltd. (In re DSC, Ltd.), 486 F.3d 940, 944 (6th Cir.2007). “Under a de novo standard of review, the reviewing court decides an issue independently of, and without deference to, the trial court’s determination.” Menninger v. Accredited Home Lenders (In re Morgeson), 371 B.R. 798, 800 (6th Cir. BAP 2007). Whether a chapter 11 reorganization plan correctly applies an underse-cured creditor’s election pursuant to § 1111(b)(2) involves interpretation and application of the Bankruptcy Code which is a question of law reviewed de novo. First Fed. Bank of Cal. v. Weinstein (In re Weinstein), 227 B.R. 284, 289 (9th Cir. BAP 1998); see also Cluxton v. Fifth Third Bank (In re Cluxton), 327 B.R. 612, 613 (6th Cir. BAP 2005) (“The determination whether a plan provision violates the Bankruptcy Code is a legal conclusion reviewed de novo.”) The court’s findings of fact are reviewed under the clearly erroneous standard. In re DSC, Ltd., 486 F.3d at 944. “A finding of fact is clearly erroneous ‘when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Id. (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). III. FACTS The Debtor is the owner of a partially completed 264 unit apartment complex known as Kensington Commons (“Kens-ington Property”). Construction of the complex began in 2001. The Debtor began renting units in 2003. In January 2001, Armstrong Mortgage Company (“Armstrong Mortgage”) provided the Debtor financing for the purchase of real estate and construction of the Kensington Property through a U.S. Department of Housing and Urban Development (“HUD”) program whereby HUD guaranteed payment. The Debtor executed and delivered to Armstrong Mortgage a non-recourse mortgage note (“Note”) in the original principal amount of $15,444,400, and a mortgage" }, { "docid": "18060563", "title": "", "text": "official seal. My Commission Expires: Indeñnite (illegible signature and notary seal) Notary Public JA 24 (emphasis added to handwritten words). On January 12, 1998, Seacoast Equities recorded the deed of trust, then sold its interest in the deed to Ocwen Federal Bank. On April 9, 2001, the debtors filed a bankruptcy petition under Chapter 7, after which the bankruptcy court assigned Jeanne Burton Gregory to be the trustee. As trustee, Gregory obtained the rights of “a bona fide purchaser of real property ... from the debtor [who] has perfected such transfer at the time of the commencement of the case, whether or not such a purchaser exists.” 11 U.S.C. § 544(a)(3). Believing that the acknowledgment was defective and that her status as a bona fide purchaser gave her a superior interest in the debtors’ home under Tennessee law, Gregory filed a complaint in the bankruptcy court to avoid the deed of trust held by Ocwen. The parties moved for summary judgment, and the bankruptcy court granted Gregory’s motion. In the absence of the debtors’ names, the bankruptcy court reasoned, the acknowledgment was “not in substantial compliance [with Tennessee law] and that in order for a notarization to be effective, it must include the names of the people who appear before the notary.” Bankr.Ct. Order Avoiding Lien. Ocwen appealed the decision to the district court, which affirmed. “The omission of the names in the acknowledgment,” the district court determined, “cannot be viewed ... as [a] harmless or minor deviation[ ] from the standard form language set out in the statutes. It is at the core of what an acknowledgment is meant to do.” D. Ct. Op. at 5. II. In reviewing a bankruptcy decision appealed to the district court, “[w]e accord no deference to the district court’s decision [and] review de novo the bankruptcy court’s conclusions of law.” In re Kenneth Allen Knight Trust, 303 F.3d 671, 676 (6th Cir.2002). A. Commonly referred to as the “strong-arm clause,” section 544(a) of the Bankruptcy Code allows the trustee to “avoid any transfer of property of the debtor or any obligation incurred by" }, { "docid": "19896051", "title": "", "text": "REVIEW The Bankruptcy Appellate Panel (“BAP”) has jurisdiction to decide this appeal. The United States District Court for the Western District of Michigan has authorized appeals to the BAP, and a final order of the bankruptcy court may be appealed by right under 28 U.S.C. § 158(a)(1). An order, for the purpose of an appeal, is final if it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989). The bankruptcy court’s order granting summary judgment was a final order. “An order granting summary judgment is a final order for purposes of appeal.” Wicheff v. Baumgart (In re Wicheff), 215 B.R. 839, 840 (6th Cir. BAP 1998); see also Belfance v. Bushey (In re Bushey), 210 B.R. 95, 98 (6th Cir. BAP 1997). “A grant of summary judgment is reviewed de novo.” SPC Plastics Corp. v. Griffith (In re Structurlite Plastics Corp.), 224 B.R. 27, 29 (6th Cir. BAP 1998) (citing Myers v. IRS (In re Myers), 216 B.R. 402, 403 (6th Cir. BAP 1998)). “De novo means that the appellate court determines the law independently of the trial court’s determination.” In re Ravenswood Apartments, Ltd., 338 B.R. 307, 310 (6th Cir. BAP 2006) (quoting Treinish v. Norwest Bank Minn., N.A. (In re Periandri), 266 B.R. 651, 653 (6th Cir. BAP 2001)); see also In re Mktg. & Creative Solutions, Inc., 338 B.R. 300, 302 (6th Cir. BAP 2006) (“De novo review means that the issue is decided as if it had not been heard before.”) (citing In re Downs, 103 F.3d 472 (6th Cir.1996)); Fields v. Sallie Mae Servicing Corp. (In re Fields), 326 B.R. 676, 678 (6th Cir. BAP 2005) (“De novo review requires the Panel to review questions of law independent of the bankruptcy court’s determination.”) (quoting In re Eubanks, 219 B.R. 468, 469 (6th Cir. BAP 1998)). “No deference is given to the trial court’s conclusions of law.” In re Eastown Auto Co., 215 B.R. 960, 964 (6th Cir. BAP" }, { "docid": "16170746", "title": "", "text": "Acknowledgment therefore met the § 147.53(B) certification requirement. In Geygan v. World Savs. Bank, FSB (In re Nolan), 383 B.R. 391, 395 (6th Cir. BAP 2008), the Bankruptcy Appellate Panel for the Sixth Circuit (“BAP”) ruled on the meaning of another phrase used in a certification in lieu of “acknowledged before me.” The BAP held that the phrase in that case, “witness my hand,” indicated only that the notary public “observed the signing of the document by another individual” and failed to indicate that the notary public had satisfactory evidence of the identity of that individual. See Nolan, 383 B.R. at 395. The Nolan court also held that the reference to an attached notary acknowledgment “suggested] that there was no intention to rely on the words ‘witness my hand’ as an acknowledgment and that the parties intended to attach a formal acknowledgment.” Nolan, 383 B.R. at 396. The Court also noted that the certificate of acknowledgment failed to include the name of the mortgagors. See Nolan, 383 B.R. at 396. In the instant case, the phrase “executed before me by ” followed by the names of the individuals signing the Mortgage carries more meaning than the phrase “witness my hand.” The Trustee has cited no decision holding invalid a certificate of acknowledgment that uses the phrase “executed before me.” In fact, the parties have not cited, and the Court’s research has not uncovered, a decision analyzing the validity of a certificate of acknowledgment in a case with a fact pattern precisely on point. But the Court’s independent research revealed a decision — Dunlap v. Commonwealth Cmty. Bank (In re Phelps), 341 B.R. 848 (Bankr.W.D.Ky.2006) — decided on closely analogous facts. In Phelps, a Chapter 7 trustee sought to avoid a mortgage on the basis of an acknowledgment that allegedly was defective under governing Kentucky law because it stated that the mortgagors’ signatures were “subscribed and sworn to before ” rather than “acknowledged before” the notary public. As does Ohio law, Kentucky law requires that a notary public certifying an acknowledgment certify that the mortgagors appeared and acknowledged their execution of" }, { "docid": "2293087", "title": "", "text": "879 (1989) (citations omitted). The bankruptcy court’s order granting the trustee’s motion for turnover is a final order. See Professional Ins. Mgmt. v. Ohio Casualty Group of Ins. Cos. (In re Professional Ins. Mgmt.), 285 F.3d 268, 281 (3d Cir.2002) (“Following the lead of every circuit court that has considered the question directly or indirectly, we hold that a bankruptcy court’s turnover order ... is a final order and hence appealable as of right.”). “The bankruptcy court’s findings of fact are reviewed for clear error, and questions of law are reviewed de novo.” Dery v. Cumberland Casualty & Surety Co. (In re 5900 Assocs., Inc.), 468 F.3d 326, 329 (6th Cir.2006) (citation omitted). A factual determination is clearly erroneous “when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Bailey v. Bailey (In re Bailey), 254 B.R. 901, 903 (6th Cir. BAP 2000) (citations omitted). “De novo review means that the appellate court determines the law independently of the trial court’s determination.” Treinish v. Norwest Bank Minn., N.A. (In re Periandri), 266 B.R. 651, 653 (6th Cir. BAP 2001). III. FACTS The Debtors filed their voluntary joint chapter 7 petition on March 28, 2005. Andrew W. Suhar (“Trustee”) was appointed as the chapter 7 trustee. On May 24, 2005, the § 341 meeting (“first meeting”) was held. 11 U.S.C. § 341. As of the date of the first meeting, the Debtors had not yet filed their 2004 federal and state tax returns. The Trustee advised the Debtors that any tax refunds to which they were entitled were to be turned over to the Trustee upon their receipt. The Debtors signed an acknowledgment that they were instructed to do so. The Debtors filed their 2004 tax returns on July 15, 2005. Subsequently, they received a $620 state income tax refund and a $3,429.93 federal income tax refund. The Debtors allege that their bankruptcy attorney at the time, James H. Beck, Esq. (“Attorney Beck”), advised them that $1,600 of the federal refund could" }, { "docid": "12145782", "title": "", "text": "Cir.1999). The bankruptcy court’s grant of summary judgment is reviewed de novo. Treinish v. Norwest Bank Minn., N.A. (In re Periandri), 266 B.R. 651, 653 (6th Cir. BAP 2001). The bankruptcy court’s interpretation and application of the Bankruptcy Code and pertinent state law are reviewed de novo. Ruskin v. Daimler-Chrysler Servs. N. Am., L.L.C. (In re Adkins), 425 F.3d 296, 298 (6th Cir.2005); Van Aken v. Van Aken (In re Van Aken), 320 B.R. 620, 623 (6th Cir. BAP 2005). Denial of a motion to alter or amend a grant of summary judgment is also reviewed de novo although denial of such a motion is otherwise reviewed for abuse of discretion. Cockrel v. Shelby Co. Sch. Dist., 270 F.3d 1036, 1047 (6th Cir.2001). “De novo means that the appellate court determines the law independently of the trial court’s determination.” In re Periandri, 266 B.R. at 653. No deference is given to the bankruptcy court’s conclusions of law. Mktg. & Creative Solutions, Inc. v. Scripps Howard Broad. Co. (In re Mktg. & Creative Solutions, Inc.), 338 B.R. 300, 302 (6th Cir. BAP 2006). III. FACTS The facts are stipulated. On August 8, 2001, the Debtor, Gary Victor Trujillo, executed a promissory note in the principal sum of $153,000.00 in favor of CIT. To secure repayment of the note, he signed a mortgage with respect to certain real property located at 315 South Mill Street in Lexington, Fayette County, Kentucky, in favor of CIT. The mortgage was accepted for recording and was recorded in the Fayette County Clerk’s Office on August 29, 2001. Select Portfolio services the mortgage. The mortgage contains the following: IN WITNESS WHEREOF, the undersigned (has-have) signed this instrument on the date and year first above written. /s/Garv Victor Trujillo (Seal) GARY VICTOR TRUJILLO _(Seal) STATE OF KENTUCKY COUNTY OF /hw/ FAYETTE ss. _(Seal) The foregoing instrument was acknowledged before me this /hw/ 8th day of /hw/ August 2001 My commission expires /hw/ 8-4-03 /s/ [illegible signature! (Notary Public) Prepared by /s/ [illegible signature] /hw/ Fayette County, Kentucky. (Signature) [stamped] MAINOUS & GRANT 201 West Vine Street Lexington, Kentucky" }, { "docid": "12145781", "title": "", "text": "the intervening amendment of Kentucky Revised Statute § 382.270. II. JURISDICTION AND STANDARD OF REVIEW The Bankruptcy Appellate Panel for the Sixth Circuit Court of Appeals (“BAP”) has jurisdiction to decide this appeal. The United States District Court for the Eastern District of Kentucky has au thorized appeals to the BAP, and a final order of the bankruptcy court may be appealed as of right pursuant to 28 U.S.C. § 158(a)(1). For purposes of appeal, a final order “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations omitted). An order granting summary judgment for the defendant is a final order. Wicheff v. Baumgart (In re Wicheff), 215 B.R. 839, 840 (6th Cir. BAP 1998). An order disposing of a motion to alter or amend a prior judgment is likewise a final order for purposes of appeal. GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 832-33 (6th Cir.1999). The bankruptcy court’s grant of summary judgment is reviewed de novo. Treinish v. Norwest Bank Minn., N.A. (In re Periandri), 266 B.R. 651, 653 (6th Cir. BAP 2001). The bankruptcy court’s interpretation and application of the Bankruptcy Code and pertinent state law are reviewed de novo. Ruskin v. Daimler-Chrysler Servs. N. Am., L.L.C. (In re Adkins), 425 F.3d 296, 298 (6th Cir.2005); Van Aken v. Van Aken (In re Van Aken), 320 B.R. 620, 623 (6th Cir. BAP 2005). Denial of a motion to alter or amend a grant of summary judgment is also reviewed de novo although denial of such a motion is otherwise reviewed for abuse of discretion. Cockrel v. Shelby Co. Sch. Dist., 270 F.3d 1036, 1047 (6th Cir.2001). “De novo means that the appellate court determines the law independently of the trial court’s determination.” In re Periandri, 266 B.R. at 653. No deference is given to the bankruptcy court’s conclusions of law. Mktg. & Creative Solutions, Inc. v. Scripps Howard Broad. Co. (In re Mktg. & Creative Solutions, Inc.), 338" }, { "docid": "12196397", "title": "", "text": "on the Trustee’s complaint to avoid Citifinancial’s mortgages based on the defective notary clauses that did not comply with Kentucky law. See 11 U.S.C. § 544; Ky.Rev.Stat. § 382.270. 2. Whether the assignments of the mortgages were sufficient to give the Trustee constructive notice or inquiry notice of Citifinancial’s security interest. 3. What effect, if any, does the amendment to Kentucky Revised Statute § 382.270 which became effective July 12, 2006, have on the Trustee’s ability to avoid the mortgages. II.JURISDICTION AND STANDARD OF REVIEW The Bankruptcy Appellate Panel (“BAP”) of the Sixth Circuit has jurisdiction to decide this appeal. By order entered September 8, 2006, the United States District Court for the Eastern District of Kentucky authorized appeals to the BAP. A final order of the bankruptcy court may be appealed as of right. 28 U.S.C. § 158(a)(1). For purposes of appeal, a final order “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations omitted). The bankruptcy court’s order granting the Trustee’s motion for summary judgment resulting in the avoidance of Citifinancial’s mortgage liens is a final order and states conclusions of law that are reviewed de novo. Treinish v. Norwest Bank Minn., N.A. (In re Periandri), 266 B.R. 651, 653 (6th Cir. BAP 2001). “De novo means that the appellate court determines the law independently of the trial court’s determination.” Id. Because there are no factual disputes, summary judgment is appropriate for one of the parties. See Rogan v. Am. ’s Wholesale Lender d/b/a Countrywide Home Loans, Inc. (In re Vance), 99 Fed.Appx. 25, 27 (6th Cir.2004). III.FACTS The facts of this appeal are set forth below in chronological order. March 20, 2000: The Debtors granted a first mortgage on real estate to MG Investments securing a note in the principal amount of $98,800. On March 22, 2000, the mortgage was recorded in the Office of the Clerk for Mercer County, Kentucky (“Mercer County Clerk’s Office”). March 20, 2000: The" }, { "docid": "15221677", "title": "", "text": "OPINION LATTA, Bankruptcy Judge. Kenneth Dwayne Perrin and Tammy Lynn Perrin (“Debtors”) appeal an order of the bankruptcy court finding a willful violation of the automatic stay, but awarding no damages to the Debtors. I.ISSUES ON APPEAL The issues raised by this appeal are: (1) whether an award of damages is mandated by section 362(h) even when the debtor fails to prove actual damages; and (2) whether the bankruptcy court erred in permitting a pro se creditor to call the Debtors’ counsel to testify. II.JURISDICTION AND STANDARD OF REVIEW The Bankruptcy Appellate Panel of the Sixth Circuit (the “BAP”) has jurisdiction to decide this appeal. The United States District Court for the Southern District of Ohio has authorized appeals to the BAP, and a final order of the bankruptcy court may be appealed as of right pursuant to 28 U.S.C. § 158(a)(1). For purposes of appeal, a final order “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations omitted). The bankruptcy court’s order finding a violation of the automatic stay is a final order. Heghmann v. Indorf (In re Heghmann), 316 B.R. 395, 400 (1st Cir. BAP 2004). The question whether damages must be awarded whenever a willful violation of the automatic stay is found to have occurred is a question of statutory interpretation and is subject to de novo review. “De novo means that the appellate court determines the law independently of the trial court’s determination.” O’Brien v. Ravenswood Apts., Ltd. (In re Ravenswood Apts., Ltd.) 338 B.R. 307, 310 (6th Cir. BAP 2006). The question of whether the bankruptcy court properly permitted Debtors’ counsel to be called as a witness is likewise a question of law subject to de novo review. III.FACTS Debtor Kenneth Perrin (“Perrin”) is employed as a professional cabinet maker. He also owns and operates a small cabinet shop on the side to earn additional income. Beginning in April 2004, Perrin rented work space from creditor Ronald" }, { "docid": "16170730", "title": "", "text": "preserve the mortgage for the benefit of the Debtors’ estates (Count II). For the reasons stated below, the Court concludes that the certificate of acknowledgment complied with Ohio law and that the Motion for Summary Judgment should be denied. II. Findings of Fact The facts upon which this adversary proceeding may be decided are without dispute and may be summarized as follows: The Trustee is seeking to avoid a mortgage on residential real property located at 24 Van Burén Street, Muskingum County, Zanesville, Ohio (“Property”). Prior to their bankruptcy, on December 18, 2007, the Roberts obtained a loan from Citifinan-cial and granted it a mortgage on the Property (“Mortgage”), which was recorded on December 19, 2007. “Borrower” is defined on the first page of the Mortgage as “John E. Roberts Judy K. Roberts Husband and Wife[.]” The Mortgage’s granting clause, which states that “Borrower has executed this Mortgaged” is followed by the signatures and printed names of John E. Roberts and Judy K. Roberts, The signatures are followed by a certificate of acknowledgment (“Acknowledgment”), which states as follows: STATE OF OHIO. Muskingum, County ss: Executed before me on 18th day of Dec.2007 by John E. Roberts & Judy K. Roberts, the individuals who, under penalty of perjury in violation of Section 2921.11 of the Ohio Revised Code, executed the foregoing instrument and that they did examine and read the same and did sign the foregoing instrument, and the same is their free act and deed. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. My Commission Expires: 03-01-10 (seal) /s/Stephanie K. DuBeck Stephanie K. DuBeck Notary Public This instrument was prepared by: CITIFINANCIAL, INC. 3572 MAPLE AVE ZANESVILLE OH 43701 STEPHANIE K. DuBECK Notary Public State of Ohio My Commission Expires 03-01-10 The notary public signed the Acknowledgment and stamped it with her official seal beside her signature. III. Conclusions of Law A. Standard of Review for Motions for Summary Judgment Fed.R.Civ.P. 56(c), made applicable to adversary proceedings by Bankruptcy Rule 7056, provides as follows: The motion [for summary judgment] must be served at least 10 days" } ]

[ { "docid": "8222773", "title": "", "text": "17 (S.D.N.Y.1958). This relief is designed to avoid a needless waste of time, money and effort and to expedite the litigation. The defendants will have had their full opportunity to cross-examine the deponents in the Lober action (Cf. Rule 26(d)) and the right to conduct further discovery proceedings on matters not covered in the Lober depositions and interrogatories. They are therefore not prejudiced by the relief granted. Nothing herein affects the use or admissibility of the depositions and interrogatories at trial. See also, Copeland v. Petroleum Transit Co., Inc., 32 F.R.D. 445 (1963). The defendants object to the relief requested on the ground that there is no authority for ordering such use of depositions and interrogatories not yet taken. But at the time of their use at trial, the depositions and interrogatories will be those taken in a prior action and that is all that is required. See Hertz v. Graham, supra. Defendants also object to a decision by Judge Bryan of this court in the instant motion on the permissible scope of discovery. That decision is the law of the case (Bartels v. Sperti, 73 F.Supp. 751, 754 (S.D.N.Y.1947)) and furthermore this court is in full agreement with its content. Plaintiffs here have offered to withdraw their demand for a jury trial in the § 16(b) action to avoid any possible prejudice to the defendants. The defendants’ contention that Rule 38(d) prevents the plaintiff from so doing seems without merit here, for only the plaintiff may demand a jury trial in a § 16(b) suit. Arbetman v. Playford, 83 F.Supp. 335 (S.D.N.Y.1949). The defendants thus could not possibly have relied on the plaintiff’s demand for a jury trial causing them to forego any such demand on their part. While this order is not conditioned on withdrawal of the demand by the plaintiff, the court strongly suggests that the parties reach a stipulation on this matter consistent with the plaintiff’s offer of withdrawal. This decision will not limit any further discovery in this action, should any be called for. It merely provides that as to the parties to be examined" } ]

[ { "docid": "1276515", "title": "", "text": "the substantive claims made, there is also offered the distinct argument that consolidation of the many actions arising out of the EFCA fraud into one amended complaint is not within the power of this Court. Fed.R.Civ.Pro. 42(a) provides: “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Similarly, 28 U.S.C. § 1407(a) provides in part: “When civil actions involving one or more common questions of fact áre pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings. In accordance with these provisions, the Court ordered the filing of the First Amended Unified and Consolidated Complaint in this litigation. The actions from which the Complaint was fashioned involve common questions of law and fact concerning the nature, scope, and legal consequences of the fraud at EFCA. This core issue is central to all the proceedings before this Court in M.D.L. Docket No. 142. Consolidation of all pretrial proceedings in this litigation is, therefore, permitted by Fed.R. Civ.Pro. 42(a) in conjunction with § 1407(a). Certain defendants claim, however, that an order of consolidation cannot include an order requiring the consolidation of pleadings as accomplished by the Complaint. In support of this contention, defendants rely on Johnson v. Manhattan Railway, 289 U.S. 479, 53 S.Ct. 721, 77 L.Ed. 1331 (1933); Garber v. Randell, All F.2d 711 (2 Cir. 1973); MacAlister v. Guterma, 263 F.2d 65 (2 Cir. 1958); and National Nut Co. of California v. Susu Nut Co., 61 F.Supp. 86 (N.D.Ill.1945). The courts in each of these cases recognized the discretionary power of the district court to fashion consolidated pretrial procedures to further the administration of justice. Johnson v. Manhattan Railway, supra, 289 U.S. at 496, 53 S.Ct. at 727-28, 77 L.Ed. at 1344; Garber v. Randell, supra, at 714; MacAlister v. Guterma, supra," }, { "docid": "22829422", "title": "", "text": "the length of depositions, make the depositions more orderly, and be available for on-the-spot rulings, if desired, his entry into a case might well prove more beneficial to the parties than pre-trial consolidation and the appointment of a general counsel. Similarly, an application for the assignment of a single judge pursuant to Rule 2 of the General Rules of the District Courts for the Southern and Eastern Districts of New York might well have been considered. Finally, though several notices of examination have already been filed appellant has not sought the protection of Rules 30(b) or 30(d). Failure to invoke any or all of these devices precludes any finding that the relief then requested was essential to the adequate protection of appellant’s rights, and necessary to the orderly conduct of the proceedings. There is present in this case still another factor militating against the granting of the relief requested by appellant. The MacAlister group charges that appellant and one of the other plaintiffs below have cooperated in an attempt to oust counsel for MacAlister from control of their own litigation and to lodge control in a “friendly” counsel. This allegation indicates that there is more than the usual amount of animosity present' in these cases, and that there is small likelihood that counsel will be able to work harmoniously under the guiding hand of one general counsel. See Price v. Creole Petroleum Corp., Sup.1944, 51 N.Y.S.2d 783. For this reason, the lower court was justified at that time in denying the appointment of a general counsel even for the limited purpose of supervising the conduct of plaintiffs’ case at trial. In any event, whether a general counsel is necessary to insure the orderly procedure at trial is a question for future determination. D. The Denial of the Injunction There remains for our consideration the propriety of Judge Cashin’s denial of an injunction restraining all other stockholders from asserting the same claims in court actions not yet commenced. Without deciding the authority of the District Court to grant such relief we find appellant’s fears of being deluged with similar derivative stockholders’" }, { "docid": "14471986", "title": "", "text": "8, 2001, plaintiffs filed a motion pursuant to Fed.R.Civ.P. 42(a) seeking to consolidate this action (No. 01-CV-425) with the original “Solvent” action (No. 83-CV-1401). Items 1028-1030 in No. 83-CV-1401. Rule 42(a) provides: When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. As the rule indicates, among the factors the court should consider in deciding whether to consolidate are: identity of the parties, the existence of common questions of law and fact, and the potential for creating confusion by combining multiple claims. Hooker Chemicals & Plastics Corp. v. Diamond Shamrock Corp., 96 F.R.D. 46, 48-49 (W.D.N.Y.1982). In its analysis, the court must “examine the special underlying facts with close attention before ordering a consolidation.” In re Repetitive Stress Injury Litigation, 11 F.3d 368, 373 (2d Cir.1993) (internal quotations and citation omitted). In making its decision, the trial court “has broad discretion to determine whether consolidation is appropriate.” Johnson v. Celotex Corp., 899 F.2d 1281, 1284-85 (2d Cir.1990). This discretion, however, is not unfettered. Id. at 1285. The court “must balance the efficiency concerns against the potential for confusion or prejudice which may result from this move.” Kelly v. Kelly, 911 F.Supp. 66, 69 (N.D.N.Y.1996). While “considerations of judicial economy favor consolidation,” those considerations “must yield to a paramount concern for a fair and impartial trial.” Celotex, 899 F.2d at 1285. Finally, the burden is on the moving party in persuading the court to grant its motion to consolidate. MacAlister v. Guterma, 263 F.2d 65, 70 (2d Cir.1958); see also Schacht v. Javits, 53 F.R.D. 321, 325 (S.D.N.Y.1971) (“Plaintiff in his motion papers gives the Court no assistance in comparing the ... actions in order to determine the desirability of consolidation. Plaintiffs failure to marshall facts supporting consolidation and the reasoned opposition by ... the defendants are persuasive grounds for denying the" }, { "docid": "22829421", "title": "", "text": "may be submitted. The decision to affirm, therefore, is without prejudice to an application upon a proper showing for such relief as may be efficacious to avoid the consequences of duplication and conflict. These situations had not been sufficiently established at the time of Judge Cashin’s decision and hence it was within his discretion to deny the relief requested. Many avenues of relief were open to the appellant to forestall the possible confusion and duplication which it alleges will inevitably result from the present state of affairs. If appropriate, application might have been made for the appointment of a pre-trial master as was done in Levin v. Skouras. Such masters have proven effective in the past in cases such as Ferguson v. Ford Motor Co., Civ. 44-482 (S.D.N.Y.) and Schwartz v. Broadcast Music, Inc., Civ. 89-103 (S.D. N.Y.) in preventing the very duplication ■and harassment which appellant fears here. See Kaufman, Masters in the Federal Courts: Rule 53, 58 Colum.L.Rev. 452, 466-68 (1958). Indeed, because a pre-trial master would be in a position to reduce the length of depositions, make the depositions more orderly, and be available for on-the-spot rulings, if desired, his entry into a case might well prove more beneficial to the parties than pre-trial consolidation and the appointment of a general counsel. Similarly, an application for the assignment of a single judge pursuant to Rule 2 of the General Rules of the District Courts for the Southern and Eastern Districts of New York might well have been considered. Finally, though several notices of examination have already been filed appellant has not sought the protection of Rules 30(b) or 30(d). Failure to invoke any or all of these devices precludes any finding that the relief then requested was essential to the adequate protection of appellant’s rights, and necessary to the orderly conduct of the proceedings. There is present in this case still another factor militating against the granting of the relief requested by appellant. The MacAlister group charges that appellant and one of the other plaintiffs below have cooperated in an attempt to oust counsel for MacAlister from" }, { "docid": "23094448", "title": "", "text": "to relieve against just such situations. There is no showing that appellants were denied the right to introduce any evidence they desired to introduce. Id. at 780-81. It is not open to serious question that a federal court in a complex, consolidated case may designate one attorney or set of attorneys to handle pre-trial activity on aspects of the case where the interests of all co-parties coincide. MacAlister v. Guterma, 263 F.2d 65 (CA2, 1958), is perhaps the leading case on the court’s power to appoint and rely on lead counsel. Chief Judge Kaufman’s opinion contains these pertinent passages on the issue of judicial power: The purpose of consolidation is to permit trial convenience and economy in administration. Toward this end Rule 42(a) in addition to providing for joint trials in actions involving common questions of law and fact specifically confers the authority to “make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Certainly, overlapping duplication in motion, practices and pre-trial procedures occasioned by competing counsel representing different plaintiffs in separate stockholder derivative actions constitute the waste and inefficiency sought to be avoided by the lucid direction contained in the rule. . An order consolidating . actions during the pre-trial stages, together with the appointment of a general . counsel may in many instances prove the only effective means of channeling the efforts of counsel along constructive lines and its implementation must be considered within the clear contemplation of the rule. . It would be anomalous indeed if the use of consolidation before trial were excluded from the mounting arsenal of pre-trial devices now made available to the trial judge. By denying the power of the district court to consolidate actions in and for the pre-trial stages we would in effect be marking time while judicial administrative reform in other areas pushed forward. Such judicial retrenchment is not compelled either by the clear wording of Rule 42 or by the traditional exercise of the court’s inherent powers over the administration and supervision of its own business. . The advantages of this procedure should not" }, { "docid": "2665363", "title": "", "text": "appeals from interlocutory orders authorized by 28 U.S.C. § 1292(b), Skivin v. Mesta, 141 F.2d 668, 671 (10 Cir. 1944); Nolfi v. Chrysler Corp., 324 F.2d 373 (3 Cir. 1963) (per curiam); United States v. Chelsea Towers, Inc., 404 F.2d 329, 330 (3 Cir. 1968) (per curiam); National Ass’n for Advancement of Colored People of Louisiana v. Michot, 480 F.2d 547, 548 (5 Cir. 1973) (per curiam). Cf. Travelers Indemnity Co. v. Millers Mfg. Co., 276 F.2d 955 (6 Cir. 1960) (per curiam). The commentators endorse this position. 9 Moore, Federal Practice ¶ 110.13[8], at 183 (2d ed. 1973) (footnote omitted) (“An order granting or denying consolidation, or granting or denying separate trials, is an ordinary, non-appealable interlocutory order.”); 9 Wright & Miller, Federal Practice and Procedure § 2386, at 275 (1971). This circuit seems to stand alone in having taken a different' view. We upheld the appealability of an order denying pre-trial consolidation in MacAlister v. Guterma, 263 F.2d 65 (2 Cir. 1958), and followed that precedent in the case of an order granting such consolidation in Garber v. Randell, 477 F.2d 711 (2 Cir. 1973). However, under this court’s doctrine, not all such orders are appealable; they are “final” and appealable only under “exceptional circumstances” or when they raise “basic issues”, Levine v. American Export Industries, 473 F.2d 1008, 1009 (2 Cir. 1973) (per curiam), whatever that may mean. While this attempt to limit our original error may be commendable, it invites further jurisdictional argument that ought to be avoided. The majority holds out some hope that the time may come when we will bring ourselves in line with our sister circuits with respect to the appealability of consolidation orders. I can think of no better time than now, when appellate dockets have swollen to the breaking point. Holding such orders — more accurately, some such orders — to be appealable violates the principles underlying the final judgment rule. It brings an appellate court into complex litigation, which may well be ended by settlement, before the issues are formulated and when the parties are only beginning to develop" }, { "docid": "22829419", "title": "", "text": "counsel. Cf. Mottolese v. Kaufman, 2 Cir., 1949, 176 F.2d 301. But while the district courts are invested with the power to consolidate actions for all purposes and to appoint a general counsel they have no such authority to order a consolidated complaint as requested by appellant. See Levin v. Skouras, supra; National Nut Co. of Cal. v. Susu Nut Co., supra. Such an order would tend to merge the various actions in disregard of the caveat expressed in Johnson v. Manhattan Ry. Co., 1933, 289 U.S. 479, 496-497, 53 S.Ct. 721, 77 L.Ed. 1331. C. Exercise of Discretion Finding that the necessary power is reposed in the district court to order pre-trial consolidation and the appointment of one general counsel it remains for us to determine whether the declination to do so constituted an abuse of discretion under the circumstances presented. Relief of this type is concededly extraordinary. It should be granted only under compelling circumstances and should not be resorted to where other more conventional remedies will suffice. The three actions before us were commenced in April and May 1958. The order denying pre-trial consolidation and appointment of general counsel was filed on June 10, 1958. At that stage of the proceedings it was difficult, if not impossible, to determine whether the anticipated injury and prejudice would materialize. The burden was on the appellant to show sufficient justification for the relief requested. Subsequent to the denial of the consolidation order by Judge Cashin many procedural moves by the various counsel in the three actions have been brought to the attention of this court by applications for stays pending appeal. In the light of what we have said concerning the power of the district court so to regulate litigation that the courts are not needlessly burdened it may well be that one or more of the procedural remedies available should be entertained by the trial judges to eliminate the waste of time and effort occasioned by a myriad of pre-trial motions in each action thus necessitating an examination of the entire file by each judge to whom the matter" }, { "docid": "23094447", "title": "", "text": "in which a jury had been demanded, went to trial first. Before commencing the jury case, the district judge notified counsel in these cases that in order to avoid needless repetition, all evidence on the question of negligence taken in the-jury case would be “incorporated” in the non-jury cases, but that the parties to the non-jury cases could introduce in those cases any additional evidence they desired on the question of negligence. The trial court further notified plaintiffs in the non-jury cases (appellants here) that they could fully participate in the jury case, which was done. Id. at 780. The defendant won across the board. On appeal, this court affirmed, viewing the judge’s procedure as, in effect, a Rule 42 consolidation on the negligence issue: It would have been a work of supererogation, and a needless waste of time, for the trial judge to have again heard in the non-jury cases the lengthy evidence on the question of negligence which he had just heard eleven days before, in the jury case. Rule 42 was designed to relieve against just such situations. There is no showing that appellants were denied the right to introduce any evidence they desired to introduce. Id. at 780-81. It is not open to serious question that a federal court in a complex, consolidated case may designate one attorney or set of attorneys to handle pre-trial activity on aspects of the case where the interests of all co-parties coincide. MacAlister v. Guterma, 263 F.2d 65 (CA2, 1958), is perhaps the leading case on the court’s power to appoint and rely on lead counsel. Chief Judge Kaufman’s opinion contains these pertinent passages on the issue of judicial power: The purpose of consolidation is to permit trial convenience and economy in administration. Toward this end Rule 42(a) in addition to providing for joint trials in actions involving common questions of law and fact specifically confers the authority to “make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Certainly, overlapping duplication in motion, practices and pre-trial procedures occasioned by competing counsel representing different plaintiffs" }, { "docid": "2665341", "title": "", "text": "consolidated complaint. Each of these counts contains the above-quoted § 10(b) and Rule 10b-5 allegations of the Katz and Herman complaints and the several plaintiffs are the purchasers of Realty securities, the purchasers of Republic securities, and stockholders of Realty suing derivatively. The remaining bulk of the consolidated complaint concerns the manipulative transactions between Realty and Republic, transactions which allegedly began in September 1970, after Grant and KHF were unable to present unqualified financial statements and after Grant and KHF had been replaced as auditors for Realty. We are faced with deciding whether the order of consolidation sought to be appealed is an appealable order, and we find that this Circuit’s decisions in MacAlister v. Guterma, 263 F.2d 65 (2 Cir. 1958), and Garber v. Randell, 477 F.2d 711 (2 Cir. 1973), compel us to hold that this obviously interlocutory order is appealable under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In Garber the Second Circuit dealt with an appeal from a motion for severance and also from an order consolidating class and derivative stockholder suits. There the Court read MacAlister as holding that the collateral order doctrine was applicable in cases in which an order of consolidation went beyond the permissible objective of judicial economy “to deny a party his due process right to prosecute his own separate and distinct claims or defenses without having them so merged into the claims or defenses of others that irreparable injury will result.” Garber v. Randell, supra at 716. We note, however, that a significant factor in favor of finding the MacAlister order appealable is stated to be that “serious and unsettled questions [are] presented for review” and that until then there had been no previous appellate consideration of consolidation for pretrial purposes. MacAlister v. Guter-ma, supra at 67. See, also, Cohen v. Beneficial Industrial Loan Corp., supra at 547, 69 S.Ct. 1221. As experience with various economical devices for the judicial handling of complex and multifaceted actions accumulates it may well develop that the presently-felt necessity for" }, { "docid": "22829420", "title": "", "text": "were commenced in April and May 1958. The order denying pre-trial consolidation and appointment of general counsel was filed on June 10, 1958. At that stage of the proceedings it was difficult, if not impossible, to determine whether the anticipated injury and prejudice would materialize. The burden was on the appellant to show sufficient justification for the relief requested. Subsequent to the denial of the consolidation order by Judge Cashin many procedural moves by the various counsel in the three actions have been brought to the attention of this court by applications for stays pending appeal. In the light of what we have said concerning the power of the district court so to regulate litigation that the courts are not needlessly burdened it may well be that one or more of the procedural remedies available should be entertained by the trial judges to eliminate the waste of time and effort occasioned by a myriad of pre-trial motions in each action thus necessitating an examination of the entire file by each judge to whom the matter may be submitted. The decision to affirm, therefore, is without prejudice to an application upon a proper showing for such relief as may be efficacious to avoid the consequences of duplication and conflict. These situations had not been sufficiently established at the time of Judge Cashin’s decision and hence it was within his discretion to deny the relief requested. Many avenues of relief were open to the appellant to forestall the possible confusion and duplication which it alleges will inevitably result from the present state of affairs. If appropriate, application might have been made for the appointment of a pre-trial master as was done in Levin v. Skouras. Such masters have proven effective in the past in cases such as Ferguson v. Ford Motor Co., Civ. 44-482 (S.D.N.Y.) and Schwartz v. Broadcast Music, Inc., Civ. 89-103 (S.D. N.Y.) in preventing the very duplication ■and harassment which appellant fears here. See Kaufman, Masters in the Federal Courts: Rule 53, 58 Colum.L.Rev. 452, 466-68 (1958). Indeed, because a pre-trial master would be in a position to reduce" }, { "docid": "22984906", "title": "", "text": "threshold question is whether the district court’s .two orders, being interlocutory, are appealable. We have recognized that consolidation of stockholders’ suits during pretrial stages pursuant to Rule 42 F.R.Civ.P. may benefit both the court and the parties by expediting pretrial proceedings, avoiding duplication and harassment of parties and witnesses, and minimizing expenditure of time and money by all persons concerned. See MacAlister v. Guterma, 263 F.2d 65 (2d Cir. 1958). However, where the claims against, or defenses of, some parties are substantially different from those of others, some may be prejudiced by consolidation, particularly if one general or lead counsel exercises his supervisory power in a way that tends to deprive them of full discovery and preparation of their individual cases. For these reasons the determination in each case as to whether the benefits from consolidation will outweigh the prejudice to individual parties rests in the district court’s sound discretion. MacAlister v. Guterma, supra, at 69-70; United States v. Knauer, 149 F.2d 519 (7th Cir. 1945), aff’d., 328 U.S. 654, 66 S.Ct. 1304, 90 L.Ed. 1500, rehearing denied, 329 U.S. 818, 67 S.Ct. 25, 91 L.Ed. 697 (1946), petition denied, 332 U.S. 834, 68 S.Ct. 210, 92 L.Ed. 407 (1947). For essentially the same reasons the court’s power to sever claims and order separate trials is likewise discretionary, requiring it to balance the factors of benefit and prejudice that will result from the alternative courses. The denial of a motion for severance will not, therefore, usually be set aside in the absence of a clear showing of abuse of discretion. Walsh v. Miehle-Goss-Dexter, Inc., 378 F.2d 409, 412 (3d Cir. 1967). Since consolidation and severance are both discretionary and interlocutory, such orders are not ordinarily appealable. Levine v. American Export Industries, 473 F.2d 1008 (2d Cir. 1973) (consolidation); United States v. Garber, 413 F.2d 284, 285 (2d Cir. 1969) (severance). “An order granting or denying consolidation, or granting or denying separate trials, is an ordinary, nonappealable interlocutory ordér. Severance orders are the same. Such orders are appealable only by certification and permission under 28 U.S.C. § 1292(b) [footnotes omitted].” 9" }, { "docid": "18710975", "title": "", "text": "each party-plaintiff’s choice. The function of general counsel is merely to supervise and coordinate the conduct of plaintiffs’ cases, at this time only for pre-trial purposes. An orderly and expeditious disposition at trial is dependent, in large part, on the manner in which the pre-trial proceedings are conducted. The objectives of expediting the proceedings and avoiding needless time and expense to the litigants and to the Court are as desirable and as attainable in the pre-trial period as during the trial. Therefore, the benefits achieved by pre-trial consolidation and the pre-trial appointment of general counsel, whereby motions and discovery proceedings will be coordinated and channeled, will most certainly redound to the benefit of all parties to the litigation. The Court of Appeals in MacAlister v. Guterma, 263 F.2d 65, 69-70 (2nd Cir. 1958) said: “Relief of this type is concededly extraordinary. It should be granted only under compelling circumstances and should not be resorted to where other more conventional remedies will suffice.” The facts before the Court show sufficient justification for the relief requested, which the Court regards as efficacious to avoid the consequences of duplication and conflict. The Court is of the opinion that, in all likelihood, counsel for the various plaintiffs will be able to work harmoniously under the guiding hand of one general counsel during the pre-trial stage. In view of the foregoing, the Court disposes of the motions as follows: Motion by Occidental (Motion No. 76, Calendar of March 12, 1968) This motion is granted to the following extent and upon the following conditions: (1) Actions Nos. 2, 3 and 4 are consolidated with Action No. 1 for the purposes of pre-trial discovery and inspection and any other pre-trial motions and proceedings. (2) After all pre-trial motions and proceedings shall have been completed, any party may move for the consolidation of some or all the foregoing actions for the purpose of trial. At present, the Court neither expresses nor intimates any opinion concerning the merits of a consolidation for trial purposes. (3) General counsel is appointed for the plaintiffs in Actions Nos. 1, 2 and 4" }, { "docid": "22091832", "title": "", "text": "and we are cognizant of the possibly unprecedented burdens which that case has presented. Our decision today is reached on the grounds that it will enable the parties to prepare the best case possible for the Court’s consideration, and, therefore, should assist in the District Court’s eventual disposition of the suit based on all the facts counsel may appropriately bring before it. The petition for writ of mandamus is granted in accordance with the views expressed in this opinion. 9 . Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Chabot v. National Securities and Research Corp., 290 F.2d 657 (2d Cir. 1961); MacAlister v. Guterma, 263 F.2d 65 (2d Cir. 1958). . The Government has claimed that “IBM was harassing its witnesses” (Gov’t Br. 3), but offers no supporting proof thereof either from an allegedly harassed witness or his counsel. Under the circumstances no occasion for a protective order would have arisen. . Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). . In contrast to the pre-trial interview with prospective witnesses, a deposition serves an entirely different purpose, which is to perpetuate testimony, to have it available for use or confrontation at the trial, or to have the witness committed to a specific representation of such facts as he might present. A desire to depose formally would arise normally after preliminary interviews might have caused counsel to decide to take a deposition. . Transcript, p. 71, May 12, 1975 Pre-trial conference. . Ibid. p. 106. . This is in contrast to the procedure in many states wherein pleadings and motions may be returned to parties unfiled, but where the party who sought to have the item filed may then take exception to the ruling, thereby preserving the issue for purposes of appeal. See 4A C.J.S. Appeal and Error § 736. . Rule 10(a) is taken virtually verbatim from the first part of former Rule 75(a), and the original comments to the old rule are considered to apply with equal force to Rule 75’s modem counterpart. See, 9" }, { "docid": "22829418", "title": "", "text": "techniques and devices. It would be anomalous indeed if the use of consolidation before trial were excluded from the mounting arsenal of pre-trial devices now made available to the trial judge. By denying the power of the district court to consolidate actions in and for the pre-trial stages we would in effect be marking time while judicial administrative reform in other areas pushed forward. Such judicial retrenchment is not compelled either by the clear wording of Buie 42 or by the traditional exercise of the court’s inherent powers over the administration and supervision of its own business. The benefits achieved by consolidation and the appointment of general counsel, 1. e. elimination of duplication and repetition and in effect the creation of a coordinator of diffuse plaintiffs through whom motions and discovery proceedings will. be channeled, will most certainly redound to the benefit of all parties to> the litigation. The advantages of this procedure should not be denied litigants in the federal courts because of misapplied notions concerning interference with a party’s right to his own counsel. Cf. Mottolese v. Kaufman, 2 Cir., 1949, 176 F.2d 301. But while the district courts are invested with the power to consolidate actions for all purposes and to appoint a general counsel they have no such authority to order a consolidated complaint as requested by appellant. See Levin v. Skouras, supra; National Nut Co. of Cal. v. Susu Nut Co., supra. Such an order would tend to merge the various actions in disregard of the caveat expressed in Johnson v. Manhattan Ry. Co., 1933, 289 U.S. 479, 496-497, 53 S.Ct. 721, 77 L.Ed. 1331. C. Exercise of Discretion Finding that the necessary power is reposed in the district court to order pre-trial consolidation and the appointment of one general counsel it remains for us to determine whether the declination to do so constituted an abuse of discretion under the circumstances presented. Relief of this type is concededly extraordinary. It should be granted only under compelling circumstances and should not be resorted to where other more conventional remedies will suffice. The three actions before us" }, { "docid": "22984905", "title": "", "text": "to NSM’s financial statements, and concealed the existence and contents of the comfort letter. On or about October 31, 1969, certain officers and directors of Interstate allegedly sold 77,000 NSM shares without disclosing the contents of the comfort letter. Two other discrete claims are asserted against W & C: (1) that on November 20, 1969, it rendered an opinion with respect to NSM’s acquisition of Compujob, Inc. concurring in an opinion by the latter’s legal counsel which falsely. stated that title to its shares had passed to NSM as of August 29, 1969, and (2) that on October 31, 1969, and November 20, 1969, W & C rendered opinions in connection with NSM’s disposition of Collegiate Advertising Ltd., which falsely asserted that title had passed as of the end of August, 1969. The purpose of the alleged backdating of the transactions was to enable profits realized from them to be included in NSM’s August 31, 1969, year-end financial statement. It is not claimed that W & C profited from any of the foregoing conduct. The threshold question is whether the district court’s .two orders, being interlocutory, are appealable. We have recognized that consolidation of stockholders’ suits during pretrial stages pursuant to Rule 42 F.R.Civ.P. may benefit both the court and the parties by expediting pretrial proceedings, avoiding duplication and harassment of parties and witnesses, and minimizing expenditure of time and money by all persons concerned. See MacAlister v. Guterma, 263 F.2d 65 (2d Cir. 1958). However, where the claims against, or defenses of, some parties are substantially different from those of others, some may be prejudiced by consolidation, particularly if one general or lead counsel exercises his supervisory power in a way that tends to deprive them of full discovery and preparation of their individual cases. For these reasons the determination in each case as to whether the benefits from consolidation will outweigh the prejudice to individual parties rests in the district court’s sound discretion. MacAlister v. Guterma, supra, at 69-70; United States v. Knauer, 149 F.2d 519 (7th Cir. 1945), aff’d., 328 U.S. 654, 66 S.Ct. 1304, 90 L.Ed." }, { "docid": "14471987", "title": "", "text": "(internal quotations and citation omitted). In making its decision, the trial court “has broad discretion to determine whether consolidation is appropriate.” Johnson v. Celotex Corp., 899 F.2d 1281, 1284-85 (2d Cir.1990). This discretion, however, is not unfettered. Id. at 1285. The court “must balance the efficiency concerns against the potential for confusion or prejudice which may result from this move.” Kelly v. Kelly, 911 F.Supp. 66, 69 (N.D.N.Y.1996). While “considerations of judicial economy favor consolidation,” those considerations “must yield to a paramount concern for a fair and impartial trial.” Celotex, 899 F.2d at 1285. Finally, the burden is on the moving party in persuading the court to grant its motion to consolidate. MacAlister v. Guterma, 263 F.2d 65, 70 (2d Cir.1958); see also Schacht v. Javits, 53 F.R.D. 321, 325 (S.D.N.Y.1971) (“Plaintiff in his motion papers gives the Court no assistance in comparing the ... actions in order to determine the desirability of consolidation. Plaintiffs failure to marshall facts supporting consolidation and the reasoned opposition by ... the defendants are persuasive grounds for denying the motion.”). In its first set of filings in support of its motion, Solvent posits rather broad arguments that the two actions share common questions of law and fact. Solvent asserts that (1) both actions involve claims for contribution relating to the Buffalo Avenue Site and Olin Hot Spot; (2) the same substantive law-CERCLA and common law contribution-governs the claims in both actions; and (3) Solvent’s allegations against DuPont are similar and directly related to its claims against Olin in the Solvent action. See Item 1029, p. 4. Solvent claims that consolidation would not cause undue delay, confusion, or prejudice. Id., p. 5. In a later submission, Solvent provides specifics to support its contention that common questions of fact and law are involved in both actions: (1) “Virtually identical hydrogeological testimony” will be needed in the two actions to establish migration of groundwater contamination from both the Olin Facility and DuPont Facility to the Solvent Facility; (2) groundwater contamination at the Solvent Facility consists of certain contaminants attributable to Olin and other contaminants attributable to DuPont" }, { "docid": "18710974", "title": "", "text": "complaints demonstrates they share common issues of law and fact; and that the various transactions and interests involved in the four actions are closely interrelated, if not identical. Consolidation for pre-trial purposes would accomplish great convenience and economy in the administration of the litigation and would tend to avoid any unnecessary costs or delay. F.R.Civ.P. Rule 42(a) seeks to avoid overlapping duplication in motion practices and pre-trial procedures occasioned by competing counsel representing different plaintiffs in separate stockholder derivative actions. The appointment of a general counsel for pre-trial purposes would constitute an effective means of channeling the efforts of counsel along constructive lines. A consolidation under Rule 42 (a) is permitted as a matter of convenience and economy in administration. Such consolidation does not merge the four actions into a single’ cause; nor does it change the rights of the parties; nor does it make those who are parties in one action parties in another. The separate actions are not merged. By such a procedure, one general counsel is not substituted for the counsel of each party-plaintiff’s choice. The function of general counsel is merely to supervise and coordinate the conduct of plaintiffs’ cases, at this time only for pre-trial purposes. An orderly and expeditious disposition at trial is dependent, in large part, on the manner in which the pre-trial proceedings are conducted. The objectives of expediting the proceedings and avoiding needless time and expense to the litigants and to the Court are as desirable and as attainable in the pre-trial period as during the trial. Therefore, the benefits achieved by pre-trial consolidation and the pre-trial appointment of general counsel, whereby motions and discovery proceedings will be coordinated and channeled, will most certainly redound to the benefit of all parties to the litigation. The Court of Appeals in MacAlister v. Guterma, 263 F.2d 65, 69-70 (2nd Cir. 1958) said: “Relief of this type is concededly extraordinary. It should be granted only under compelling circumstances and should not be resorted to where other more conventional remedies will suffice.” The facts before the Court show sufficient justification for the relief requested, which" }, { "docid": "23663440", "title": "", "text": "which is before us at this time with regard to the conflicting viewpoints outlined above, it is our opinion that further discovery and deposition testimony must be forthcoming prior to our determination of these transfer motions. Therefore, in the exercise of our discretion, we will at this time, decline to pass on this question until discovery testimony furnishes a proper foundation for our ruling. MOTION TO CONSOLIDATE The plaintiff in Margóles v. Lum’s Inc. has requested this Court to order consolidation of his case with five other cases presently before us in this same litigation, Kraut, Brooks, Gregorio, Margoles v. Powell, and Fenichal, on the grounds that each of these suits attack the same basic transactions and involve common parties and issues. Movant places heavy reliance upon the Second Circuit’s discussion of consolidation in a stockholder’s derivative action, MacAlister v. Guterma, 263 F.2d 65, 68 (2d Cir. 1958), and upon a number of related stockholder class actions similar to the instant cases in which consolidation has been approved, see, e. g., Feldman v. Hanley, 49 F.R.D. 48 (S.D.N.Y. 1969); Abrams v. Occidental Petroleum Corp., 44 F.R.D. 543 (S.D.N.Y.1968); Fields v. Wolfson, 41 F.R.D. 329 (S.D. N.Y.1967), urging that the dangers envisioned by the MacAlister court, duplication of suits, increased costs to the litigants, delay, and ineffective use of judicial time will inevitably result if such action is not taken in their case. In addition, plaintiff contends that inconsistent results and conflicting class determinations would result from a failure to consolidate. Defendants’ opposition to consolidation is premised primarily upon the proposition that, although the claims made in Margoles v. Powell are essentially duplicative of those made in Margoles v. Lum’s, Inc., the converse is not true and, therefore, consolidation should not be granted. In effect, it is the contention of the defendant that Margoles v. Lum’s, Inc. includes claims relating to franchising and restaurant and related activities which are not common to the other suits and would only cause confusion if consolidation with them was permitted. In answer, plaintiff argues that the fact that total identity of issues and parties is" }, { "docid": "23261972", "title": "", "text": "191, by the time section 1.92 was added to the Manual for Complex Litigation the authority of the district courts regarding lead counsel was well-established. MacAlister v. Guterma, 263 F.2d 65 (2d Cir. 1958), represented “the first time that the power of the courts to order consolidation for the pre-trial stages and the appointment of general [lead] counsel to supervise and coordinate the prosecution of plaintiffs’ case [was] presented to a federal appellate court.” Id. at 67. Defendants in a stockholders’ derivative suit moved the district court for an order consolidating various related actions and appointing lead counsel for the consolidated plaintiffs. The district court refused. On appeal, the Second Circuit held that the district court had the “inherent powers” to consolidate and appoint lead counsel but that in that case, the district judge had not abused his discretion in refusing to do so. In support of its decision regarding the district court’s authority to appoint lead counsel, the Second Circuit noted: The benefits achieved by consolidation and the appointment of general counsel, i. e. elimination of duplication and repetition and in effect the creation of a coordinator of diffuse plaintiffs through whom motions and discovery proceedings will be channeled, will most certainly redound to the benefit of all parties to the litigation. The advantages of this procedure should not be denied litigants in the federal courts because of misapplied notions concerning interference with a party’s right to his own counsel. Id. at 69 (citation omitted). The authority recognized in MacAlister has never been seriously disputed. Indeed, many courts since that decision have explicitly reaffirmed their authority to appoint lead counsel and have exercised that authority. See, e. g., Katz v. Realty Equities Corp., 521 F.2d 1354, 1356 (2d Cir. 1975); Farber v. Riker-Maxson Corp., 442 F.2d 457 (2d Cir. 1971); Feldman v. Hanley, 49 F.R.D 48 (S.D.N.Y.1969); Abrams v. Occidental Petroleum Corp., 44 F.R.D. 543 (S.D.N.Y.1968). In Abrams, for example, the district court took action similar to that taken by the district judge in this case. The court appointed lead counsel but limited his authority to discovery and other" }, { "docid": "2665362", "title": "", "text": "be harmed by the order will be irreparably lost, and not even all of those orders, 337 U.S. at 547, 69 S.Ct. 1221. If appellants should ever be able to show prejudice from Judge Pollack’s order, they clearly can have relief on an appeal from any final judgment against them, if such judgment there should be. Dupont v. Southern Pacific Co., 366 F.2d 193, 196 (5 Cir. 1966), cert. denied, 386 U.S. 958, 87 S.Ct. 1027, 18 L.Ed.2d 106 (1967); Atkinson v. Roth, 297 F.2d 570, 575 (3 Cir. 1961); 9 Wright & Miller, Federal Practice and Procedure § 2386, at 276 (1971). The order here involves “only an exercise of discretion ., a matter . . . subject to reconsideration from time to time . .” Cohen v. Beneficial Loan Corp., supra, 373 U.S. at 547, 69 S.Ct. at 1226. It is therefore not surprising that other circuits have uniformly ruled that orders granting or denying consolidation— even for trial as distinguished from mere pre-trial discovery — were non-appealable except by the procedure for appeals from interlocutory orders authorized by 28 U.S.C. § 1292(b), Skivin v. Mesta, 141 F.2d 668, 671 (10 Cir. 1944); Nolfi v. Chrysler Corp., 324 F.2d 373 (3 Cir. 1963) (per curiam); United States v. Chelsea Towers, Inc., 404 F.2d 329, 330 (3 Cir. 1968) (per curiam); National Ass’n for Advancement of Colored People of Louisiana v. Michot, 480 F.2d 547, 548 (5 Cir. 1973) (per curiam). Cf. Travelers Indemnity Co. v. Millers Mfg. Co., 276 F.2d 955 (6 Cir. 1960) (per curiam). The commentators endorse this position. 9 Moore, Federal Practice ¶ 110.13[8], at 183 (2d ed. 1973) (footnote omitted) (“An order granting or denying consolidation, or granting or denying separate trials, is an ordinary, non-appealable interlocutory order.”); 9 Wright & Miller, Federal Practice and Procedure § 2386, at 275 (1971). This circuit seems to stand alone in having taken a different' view. We upheld the appealability of an order denying pre-trial consolidation in MacAlister v. Guterma, 263 F.2d 65 (2 Cir. 1958), and followed that precedent in the case of an order granting" } ]

[ { "docid": "22728861", "title": "", "text": "and the price of shares rises. In this case, as in warehousing, a buyer of securities purchases stock in a target corporation on the basis of market information which is unknown to the seller. In both of these situations, the seller’s behavior presumably would be altered if he had the nonpublic information. Significantly, however, the Commission has acted to bar warehousing under its authority to regulate tender offers after recognizing that action under § 10 (b) would rest on a “somewhat different theory” than that previously used to regulate insider trading as fraudulent activity. We see no basis for applying such a new and different theory of liability in this case. As we have emphasized before, the 1934 Act cannot be read “ 'more broadly than its language and the statutory scheme reasonably permit.’ ” Touche Ross & Co. v. Redington, 442 U. S. 560, 578 (1979), quoting SEC v. Sloan, 436 U. S. 103, 116 (1978). Section 10 (b) is aptly described as a catchall provision, but what it catches must be fraud. When an allegation of fraud is based upon nondisclosure, there can be no fraud absent a duty to speak. We hold that a duty to disclose under § 10 (b) does not arise from the mere possession of nonpublic market information. The contrary result is without support in the legislative history of § 10 (b) and would be inconsistent with the careful plan that Congress has enacted for regulation of the securities markets. Cf. Santa Fe Industries, Inc. v. Green, 430 U. S., at 479. IV In its brief to this Court, the United States offers an alternative theory to support petitioner’s conviction. It argues that petitioner breached a duty to the acquiring corporation when he acted upon information that he obtained by virtue of his position as an employee of a printer employed by the corporation. The breach of this duty is said to support a conviction under § 10 (b) for fraud perpetrated -upon both the acquiring corporation and the sellers. We need not decide whether this theory has merit for it was not" } ]

[ { "docid": "3081222", "title": "", "text": "105 S.Ct. 2458, 2464, 86 L.Ed.2d 1 (1985). After reviewing what was available, the Court explained that Section 14(e) adds a ‘broad antifraud prohibition’ modeled on the antifraud provisions of § 10(b) of the Act and Rule 10b-5. It supplements the more precise disclosure provisions found elsewhere in the Williams Act, while requiring disclosure more explicitly addressed to the tender offer context than that required by § 10(b).... Nowhere in the legislative history is there the slightest suggestion that § 14(e) serves any purpose other than disclosure ... Id. at 10-11, 105 S.Ct. at 2463-2464 (citations omitted). In 1970, Congress amended the Act. To § 14(e), Congress added one sentence, of particular importance to this case: The Commission shall, for the purposes of this subsection, by rules and regulations define, and prescribe means reasonably designed to prevent, such acts and practices as are fraudulent, deceptive, or manipulative. The Supreme Court has explained the significance of that addition: In adding the 1970 amendment, Congress .. .provided a mechanism for defining and guarding against those acts and practices which involve material misrepresentation or nondisclosure. The amendment gives the [SEC] latitude to regulate nondeceptive activities as a “reasonably designed” means of preventing manipulative acts ... Id. at 11 n. 11, 105 S.Ct. at 2464 n. 11. In September 1980, pursuant to the 1970 amendment to § 14(e), the SEC adopted Rule 14e-3, which, in the tender offer context, bars trading by any person knowingly in possession of material, nonpublic information acquired from an insider. By its terms, the rule imposes a “disclose or abstain from trading” duty on any person who falls within its boundaries, even in the absence of a relationship of trust and confidence, or any fiduciary duty. When it adopted the rule, the SEC explained the ills that the rule was designed to cure: first, the inability of investors to make informed investment decisions when they trade with persons who possess material, nonpublic information; and second, the unnatural and unexplained market disruptions such trading caused. See SEC Release No. 17120 (Sept. 4, 1980), 45 Fed.Reg. 60,410. The government notes that" }, { "docid": "22971854", "title": "", "text": "the aftermath of Chiarella, Dirks [v. SEC, 463 U.S. 646, 103 S.Ct. 3255, 77 L.Ed.2d 911 (1983)], and Schreiber.”); id. at 251 & n. 109 (collecting commentaries expressing doubt as to validity of rule). The majority would confine Chiarella’s authority to section 10(b) and rule 10b-5, deeming it entirely without precedential value as to section 14(e) and rule 14e-3(a). Chiarella drew heavily, however, upon common law concepts of fraud. Its key ruling is that “the duty to disclose arises when one party has information 'that the other [party] is entitled to know because of a fiduciary or other similar relation of trust and confidence between them.’ ” 445 U.S. at 228, 100 S.Ct. at 1114. The internal quotation is from the Restatement (Second) of Torts § 551(2)(a) (1976), with an added notation that the American Law Institute regards the rule as applicable to “securities transactions.” See id. at 228 n. 9,100 S.Ct. at 1114 n. 9. No reason appears why this generally applicable rule of law, not derived in any way from the language or history of section 10(b) and rule 10b-5, should have definitive force in the construction and interpretation of those provisions, but none where section 14(e) and rule 14e-3(a) are concerned. Furthermore, both the Supreme Court and this court have explicitly recognized that section 14(e) is modeled upon the anti-fraud provisions of § 10(b) and Rule 10b-5. See Schreiber, 472 U.S. at 10 & n. 10, 105 S.Ct. at 2463 & n. 10; Connecticut Nat’l Bank v. Fluor Corp., 808 F.2d 957, 961 (2d Cir.1987) (citing Chris-Craft Indus, v. Piper Aircraft Corp., 480 F.2d 341, 362 (2d Cir.), cert. denied, 414 U.S. 910, 94 S.Ct. 231, 232, 38 L.Ed.2d 148 (1973)). Against this background, the majority’s efforts to distinguish Chiarella are less than convincing. It is true that section 14(e), unlike section 10(b), directly proscribes “fraudulent” acts and practices, but this is a barely discernible departure from section 10(b)’s prohibition of “deceptive device[s] or contrivance[s],” see Restatement (Second) of Torts at 55 (1977) (equating “fraudulent representation” and “deceit”), and both sections envision implementation by SEC regulations. In" }, { "docid": "22971855", "title": "", "text": "history of section 10(b) and rule 10b-5, should have definitive force in the construction and interpretation of those provisions, but none where section 14(e) and rule 14e-3(a) are concerned. Furthermore, both the Supreme Court and this court have explicitly recognized that section 14(e) is modeled upon the anti-fraud provisions of § 10(b) and Rule 10b-5. See Schreiber, 472 U.S. at 10 & n. 10, 105 S.Ct. at 2463 & n. 10; Connecticut Nat’l Bank v. Fluor Corp., 808 F.2d 957, 961 (2d Cir.1987) (citing Chris-Craft Indus, v. Piper Aircraft Corp., 480 F.2d 341, 362 (2d Cir.), cert. denied, 414 U.S. 910, 94 S.Ct. 231, 232, 38 L.Ed.2d 148 (1973)). Against this background, the majority’s efforts to distinguish Chiarella are less than convincing. It is true that section 14(e), unlike section 10(b), directly proscribes “fraudulent” acts and practices, but this is a barely discernible departure from section 10(b)’s prohibition of “deceptive device[s] or contrivance[s],” see Restatement (Second) of Torts at 55 (1977) (equating “fraudulent representation” and “deceit”), and both sections envision implementation by SEC regulations. In any event, this proscription hardly heralds an intention to change the meaning of the term “fraud” as previously understood in both the general law and securities law. Nor does the slight difference in language between the two provisions’ delegation of rulemaking authority to the SEC plausibly signify that Congress vested the SEC with the power to make such a change. Further, while the language of rule 14e-3(a) concededly “reveals express SEC intent to proscribe conduct not covered by common law fraud,” as the majority states, that revelation poses, rather than decides, the question that we must resolve. The majority opinion notes a passage in Chiarella that alludes to (then) proposed rule 14e-3 as a bar to warehousing of target stock in a tender offer “on a ‘somewhat different theory’ than that previously used to regulate insider trading as fraudulent activity.” Chiarella, 445 U.S. at 234, 100 S.Ct. at 1118 (quoting 1 SEC Institutional Investor Study Report, H.R.Doc. No. 64, 92nd Cong., 1st Sess., pt. 1 (the “Report”), at xxxii (1971)). The majority then identifies the" }, { "docid": "22971756", "title": "", "text": "acts and practices as are fraudulent, deceptive, or manipulative.” The contrast in statutory language is telling. It underscores, first of all, the dubious premise of Chestman’s argument — that section 14(e) was modeled after section 10(b). The two provisions are hardly identical in scope. The language of section 14(e)’s rulemaking provision, instead of tracking section 10(b), in fact mirrors section 15(c)(2), 15 U.S.C. § 78o(c)(2), which concerns broker-dealer relations. “The language of the addition to section 14(e) is identical to that contained in section 15(c)(2) of the Securities Exchange Act concerning practices of brokers and dealers in securities transactions in the over-the-counter markets.” H.R.Rep. No. 1655, 91st Cong., 2nd Sess. 4, reprinted in 1970 U.S.Code Cong. & Admin.News 5025, 5028. The contrast also illustrates that section 14(e) provides a more compelling legislative delegation to the SEC to prescribe rules than does section 10(b). While section 10(b) refers to such rules as the SEC “may prescribe as necessary or appropriate,” section 14(e) commands the SEC to prescribe rules that will “define” and “prevent” fraud. See Loewenstein, supra, 71 Geo.L.J. at 1356 (“By comparison, the Commission’s rule-making authority under section 10(b) does not include the power to define manipulative or deceptive” acts or to adopt pro-phylatic measures.). Indeed, in Chiarella, the Court even distinguished sections 10(b) and 14(e). The Court acknowledged that the SEC had recently acted pursuant to its rulemaking authority under section 14(e) to bar warehousing, a form of insider trading involving tender offers: In this case, as in warehousing, a buyer of securities purchases stock in a target corporation on the basis of market information which is unknown to the seller. In both of these situations, the seller’s behavior presumably would be altered if he had the nonpublic information. Significantly, however, the Commission has acted to bar warehousing under its authority to regulate tender offers [citing proposed Rule 14e-3] after recognizing that action under § 10(b) would rest on a “somewhat different theory” than that previously used to regulate insider trading as fraudulent activity. Chiarella, 445 U.S. at 234, 100 S.Ct. at 1117-18 (footnotes omitted). That “somewhat different theory”" }, { "docid": "8129598", "title": "", "text": "the official is thereby stating- that he believes that the statements in the document are true.’ ” Id. at *9, citing Brief for SEC, Amicus Curiae, at 7, Howard v. Everex Systems, Inc., 228 F.3d 1057 (9th Cir.1999). 2. Insider Trading as a Primary Violation Allegations of insider trading may serve different purposes under the federal securities laws, including the following: as a primary violation of § 10(b) of the 1934 Act and Rule 10b-5; as a means to raise a strong inference of scienter for a § 10(b) violation; and as the basis for an independent, but derivative, claim under § 20A of the Exchange Act. To plead a violation of § 10(b), a plaintiff must allege both (1) a breach of a fiduciary duty, such as the duty to disclose, and “manipulation or- deception,” Santa Fe Industries v. Green, 430 U.S. 462, 472, 97 S.Ct. 1292, 51 L.Ed.2d 480 (1977); and (2) scienter, or “intent to deceive, manipulate, or defraud,” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). Duty to Disclose Rule 10b-5 does not impose on a corporation an affirmative duty to disclose all nonpublic material information that it has about the corporation, and where a material omission is alleged, there is no liability under the federal securities laws unless that corporation has a duty to disclose such information. Chiarella v. United States, 445 U.S. 222, 235, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980)(“a duty to disclose under § 10(b) does not arise from the mere possession of nonpublic market information”); Dirks v. SEC, 463 U.S. 646, 654, 103 S.Ct. 3255, 77 L.Ed.2d 911 (1983); Basic Inc. v. Levinson, 485 U.S. 224, 239 n. 17, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988)(“Silence, absent a duty to disclose, is not misleading under Rule 10b — 5.”); Gross v. Summa Four, Inc., 93 F.3d 987, 992 (1st Cir.1996); Starkman v. Marathon Oil Co., 772 F.2d 231, 238 (6th Cir.1985)(“[T]he established view is that a ‘duty to speak’ must exist before the disclosure of material facts is required under Rule 10b-5.”), cert." }, { "docid": "3081230", "title": "", "text": "most, to that of § 10(b).” Def. Reply Mem. at 2 (emphasis in original). Nothing in the Supreme Court’s Schreiber opinion supports that assertion. In Schreiber, the Court concluded only that “the term ‘manipulative’ as used in § 14(e) requires misrepresentation or nondisclosure.” Schreiber, supra at 12,105 S.Ct. at 2464. The Court in no way limited the greater level of rulemaking authority delegated to the SEC by the 1970 amendment to § 14(e). Pursuant to that authority, the SEC promulgated Rule 14e-3, which this Court has determined represents a valid exercise of the SEC’s authority. B. The requisite level of intent: Defendant argues that Rule 14e-3 imposes liability based on a quasi-negligence standard—those who “know or have reason to know”—which falls far below the scienter standard required by the Supreme Court for insider trading cases. In response, the government advances two arguments. First, the government contends that defendant’s position is irrelevant because the standard of liability in this criminal case is supplied by 15 U.S.C. 78ff (“any person who willfully violates any provision of this chapter ... ”). Second, the government argues that, even if this Court were to determine that § 14(e) imposes a scien-ter requirement, then the Court need not invalidate the rule but only read a scienter requirement into the rule, much as the Supreme Court has done with Rule 10b-5. See Ernst & Ernst, supra. The Court agrees with the government’s first argument and, as a result, finds it unnecessary to reach its second. In a criminal case alleging violations of SEC rules, § 78ff provides the level of intent required for conviction. The government must prove willful misconduct, which is to say that the defendant was aware of what he was doing, that his acts were done intentionally and deliberately and not as a result of an innocent mistake, negligence or inadvertence. See United States v. Dixon, 536 F.2d 1388, 1395, 1397 (2nd Cir.1976); United States v. Chiarella, 588 F.2d 1358, 1370 (2d Cir.1978), rev’d on other grounds, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1979). At trial, the Court will instruct the" }, { "docid": "22971853", "title": "", "text": "See 436 U.S. at 119-20 & n. 10, 98 S.Ct. at 1712-13 & n. 10. A fortiori, no ratification has occurred as to rule 14e-3(a). Rule 14e-3(a) was enacted in the immediate aftermath of the Supreme Court’s ruling in Chiarella v. United States, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980). Addressing section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j (1988), and rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.1Ob-5 (1991), the Court ruled in Chiarella that “[w]hen an allegation of fraud is based upon nondisclosure, there can be no fraud absent a duty to speak.” 445 U.S. at 235, 100 S.Ct. at 1118. If that rule applies in the area of tender offers and section 14(e), of course, rule 14e-3(a) is clearly illegal. See American Bar Association Committee on Federal Regulation of Securities, Report of the Task Force on Regulation of Insider Trading, 41 Bus.Law. 223, 252 (1985) (“Rule 14e-3 squarely raises the issue whether the [SEC] has the authority to impose a limited equal-access rule in the aftermath of Chiarella, Dirks [v. SEC, 463 U.S. 646, 103 S.Ct. 3255, 77 L.Ed.2d 911 (1983)], and Schreiber.”); id. at 251 & n. 109 (collecting commentaries expressing doubt as to validity of rule). The majority would confine Chiarella’s authority to section 10(b) and rule 10b-5, deeming it entirely without precedential value as to section 14(e) and rule 14e-3(a). Chiarella drew heavily, however, upon common law concepts of fraud. Its key ruling is that “the duty to disclose arises when one party has information 'that the other [party] is entitled to know because of a fiduciary or other similar relation of trust and confidence between them.’ ” 445 U.S. at 228, 100 S.Ct. at 1114. The internal quotation is from the Restatement (Second) of Torts § 551(2)(a) (1976), with an added notation that the American Law Institute regards the rule as applicable to “securities transactions.” See id. at 228 n. 9,100 S.Ct. at 1114 n. 9. No reason appears why this generally applicable rule of law, not derived in any way from the language or" }, { "docid": "22971769", "title": "", "text": "Rule 10b-5 jurisprudence. Section 10(b) prohibits the use “in connection with the purchase or sale of any security ... [of] any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe.” 15 U.S.C. § 78j(b). Pursuant to that mandate, the SEC promulgated Rule 10b-5, which, in pertinent part, makes it unlawful “[t]o employ any device, scheme, or artifice to defraud” or “[t]o engage in any act ... which operates ... as a fraud or deceit upon any person, in connection with the purchase or sale of any security.” 17 C.F.R. § 240.-10b-5 (1988). While more than one interpretation has been given to this expansive language, fraud has remained the centerpiece of a Rule 10b-5 criminal violation. At this juncture, two general theories of Rule 10b-5 fraud have emerged to fill the interstitial gaps of the rule. 1. Traditional Theory of Rule 10b-5 Liability The traditional theory of insider trader liability derives principally from the Supreme Court’s holdings in Chiarella, 445 U.S. 222, 100 S.Ct. 1108, and Dirks v. SEC, 463 U.S. 646, 103 S.Ct. 3255, 77 L.Ed.2d 911 (1983). A securities trader commits Rule 10b-5 fraud, the Chiarella Court held, only if he “fails to disclose material information prior to the consummation of a transaction ... when he is under a duty to do so.” Chiarella, 445 U.S. at 228, 100 S.Ct. at 1114. The Chiarella Court then delineated when a person possessing material nonpublic information owes such a duty — what it called “[t]he obligation to disclose or abstain” from trading. Id. at 227, 100 S.Ct. at 1114. It held that this duty “does not arise from the mere possession of nonpublic market information.” Id. at 235, 100 S.Ct. at 1118. That is, the duty inquiry does not turn on whether the parties to the transaction have “equal information.” Dirks, 463 U.S. at 657, 103 S.Ct. at 3263 (construing Chiarella). Rather, a duty to disclose or abstain arises only from “ ‘a fiduciary or other similar relation of trust and confidence between [the parties to the transaction].’ ” Chiarella, 445 U.S." }, { "docid": "22971856", "title": "", "text": "any event, this proscription hardly heralds an intention to change the meaning of the term “fraud” as previously understood in both the general law and securities law. Nor does the slight difference in language between the two provisions’ delegation of rulemaking authority to the SEC plausibly signify that Congress vested the SEC with the power to make such a change. Further, while the language of rule 14e-3(a) concededly “reveals express SEC intent to proscribe conduct not covered by common law fraud,” as the majority states, that revelation poses, rather than decides, the question that we must resolve. The majority opinion notes a passage in Chiarella that alludes to (then) proposed rule 14e-3 as a bar to warehousing of target stock in a tender offer “on a ‘somewhat different theory’ than that previously used to regulate insider trading as fraudulent activity.” Chiarella, 445 U.S. at 234, 100 S.Ct. at 1118 (quoting 1 SEC Institutional Investor Study Report, H.R.Doc. No. 64, 92nd Cong., 1st Sess., pt. 1 (the “Report”), at xxxii (1971)). The majority then identifies the “theory” as “one that does not embrace ‘any fiduciary duty to the [target] company or its shareholders,’ ” quoting the Report at xxxii. In fact, the Report only states that people who plan takeovers do not “usually have any fiduciary duty to [the target] company or its shareholders.” Further, the majority vests significance in the fact that “the Chiarella Court did not disapprove of this exercise of the SEC’s rulemaking power under section 14(e).” Such a disapproval would have been wholly gratuitous in the circumstances. In sum, this passage cannot fairly be read as obviating the fact that Chiarella establishes a general rule linking securities fraud to a breach of fiduciary duty, and that rule 14e-3(a) represents an obvious effort by the SEC to circumvent that rule by exercising an authority that has not been entrusted to that body. Schreiber, as I have noted, establishes that section 14(e) was modeled upon section 10(b) and rule 10b-5, see 472 U.S. at 10 n. 10, 105 S.Ct. at 2463 n. 10, thus reinforcing the precedential value of" }, { "docid": "3081225", "title": "", "text": "transactions in the open market in which the shareholder of the target company may engage. Id. at 1191. In rejecting the defendants’ attempts to limit the rule’s reach, Judge Lasker described the purposefully adaptable and versatile nature of § 14(e): Congress intended the precise application of [§ 14(e) ] to be worked out over time, in the light of practical experience as to takeover practices_ “Congress ‘preferred to leave to the Commission and the courts the ability to deal effectively with transactions, not envisioned or imagined in 1968, which required the application of the statutory provisions of the Williams Act for the protection of investors’ ” [quoting letter from Senator William Proxmire and colleagues to then SEC Chairman Harold M. Williams]_ [T]he statutory language [granting rule-making authority to the SEC] is open-ended as to the transactions which might be covered and the broad grant of authority to the SEC to define the particular practices banned by the statute supports the proposition that the statute was not intended to be limited as defendants assert ... Id. at 1190-91. Congress delegated a different and greater level of authority to the SEC pursuant to § 14(e) than it had pursuant to § 10(b). With the 1970 amendment to § 14(e), Congress specifically authorized the SEC not only to define fraud but also to “prescribe means reasonably designed to prevent” fraudulent acts and practices. That provision “gives the [SEC] latitude to regulate nondeceptive activities as a ‘reasonably designed’ means of preventing manipulative acts ...” Schreiber, supra 472 U.S. at 11 n. 11, 105 S.Ct. at 2464 n. 11 (emphasis added). The provision goes beyond the authority that was made available to the SEC pursuant to § 10(b). The Court’s review of Rule 14e-3’s history— with its special emphasis on both disclosure in the specific context of tender offers and means reasonably designed to prevent fraud — satisfies the Court that Congress intended to permit the SEC to promulgate a “disclose or abstain from trading” rule along the lines of 14e-3. The Court’s conclusion is strengthened by Congressional enactment of § 21(d) of the Insider" }, { "docid": "22971753", "title": "", "text": "the face of administrative construction of a statute lends support to the validity of that interpretation. See United States v. Rutherford, 442 U.S. 544, 554 n. 10, 99 S.Ct. 2470, 2476 n. 10, 61 L.Ed.2d 68 (1979) (“once an agency’s statutory construction has been ‘fully brought to the attention of the public and the Congress,’ and the latter has not sought to alter that interpretation although it has amended the statute in other respects, then presumably the legislative intent has been correctly discerned”) (citations omitted); Red Lion Broadcasting Co., 395 U.S. at 381, 89 S.Ct. at 1802; Zemel v. Rusk, 381 U.S. 1, 11, 85 S.Ct. 1271, 1278, 14 L.Ed.2d 179 (1965) (“Congress’ failure to repeal or revise in the face of ... administrative interpretation has been held to constitute persuasive evidence that that interpretation is the one intended by Congress.”). In sum, the language and legislative history of section 14(e), as well as congressional inactivity toward it since the SEC promulgated Rule 14e-3(a), all support the view that Congress empowered the SEC to prescribe a rule that extends beyond the common law. Chestman points to nothing in the language or legislative history of section 14(e) to refute our construction of the statute. Instead he relies principally on Chiarella v. United States, 445 U.S. 222,100 S.Ct. 1108, 63 L.Ed.2d 348 (1980), and Schreiber, 472 U.S. 1, 105 S.Ct. 2458, to advance his argument that section 14(e) parallels common law fraud. That reliance is misplaced. Chiarella considered whether trading stock on the basis of material nonpublic information in the absence of a fiduciary breach constitutes fraud under section 10(b). Confronted with both congressional and SEC silence on the issue, see section 10(b) and Rule 10b-5, the Court applied common law principles of fraud. It concluded, based on those principles, that liability under section 10(b) requires a fiduciary breach. Several factors limit Chiarella’s prece-dential value in this case. First, Chiarella of course concerns section 10(b), not section 14(e). Section 10(b) is a general antifraud statute, while section 14(e) is an antifraud provision specifically tailored to the field of tender offers, an area" }, { "docid": "3081229", "title": "", "text": "“more explicitly addressed to the tender offer context than that required by § 10(b).” Id. at 11, 105 S.Ct. at 2464. The fact that one provision is modeled on another does not necessarily indicate an identical reach. Defendant also emphasizes the fact that “[t]he Second Circuit has recognized that the standards used to interpret § 10(b) and § 14(e) are virtually identical.” Def. Reply Mem. at 2 (citations omitted). That may be so. But a court may use the same standards to evaluate two different statutes and thereupon reach two different conclusions. Moreover, it remains unclear why Congress would go to the trouble of passing what defendant, in effect, contends is a superfluous and wholly repetitive statutory provision. The more compelling conclusion is that Congress did not intend such a result. In addition, defendant mistakenly relies on Schreiber v. Burlington Northern, Inc., 472 U.S. 1, 10, 105 S.Ct. 2458, 2463, 86 L.Ed.2d 1 (1985) for the proposition that “the Supreme Court has held that the reach of § 14(e) should be interpreted as equivalent, at most, to that of § 10(b).” Def. Reply Mem. at 2 (emphasis in original). Nothing in the Supreme Court’s Schreiber opinion supports that assertion. In Schreiber, the Court concluded only that “the term ‘manipulative’ as used in § 14(e) requires misrepresentation or nondisclosure.” Schreiber, supra at 12,105 S.Ct. at 2464. The Court in no way limited the greater level of rulemaking authority delegated to the SEC by the 1970 amendment to § 14(e). Pursuant to that authority, the SEC promulgated Rule 14e-3, which this Court has determined represents a valid exercise of the SEC’s authority. B. The requisite level of intent: Defendant argues that Rule 14e-3 imposes liability based on a quasi-negligence standard—those who “know or have reason to know”—which falls far below the scienter standard required by the Supreme Court for insider trading cases. In response, the government advances two arguments. First, the government contends that defendant’s position is irrelevant because the standard of liability in this criminal case is supplied by 15 U.S.C. 78ff (“any person who willfully violates any provision of this" }, { "docid": "22104761", "title": "", "text": "fraud, in violation of § 10(b) of the Securities Exchange Act of 1934 (Exchange Act), 48 Stat. 891, 15 U.S.C. § 78j(b), and SEC Rule 10b-6, 17 CFR §240.10b-5 (1996); 17 counts of fraudulent trading in connection with a tender offer, in violation of § 14(e) of the Exchange Act, 15 U. S. C. § 78n(e), and SEC Rule 14e-3(a), 17 CFR §240.14e-3(a) (1996); and 3 counts of violating federal money laundering statutes, 18 U. S. C. §§ 1956(a)(1)(B)(i), 1957. See App. 13-24. A jury convicted O’Hagan on all 57 counts, and he was sentenced to a 41-month term of imprisonment. A divided panel of the Court of Appeals for the Eighth Circuit reversed all of O’Hagan’s convictions. 92 F. 3d 612 (1996). Liability under § 10(b) and Rule 10b-5, the Eighth Circuit held, may not be grounded on the “misappropriation theory” of securities fraud on which the prosecution relied. Id., at 622. The Court of Appeals also held that Rule 14e-3(a) — which prohibits trading while in possession of material, nonpublic information relating to a tender offer — exceeds the SEC’s § 14(e) rulemaking authority because the Rule contains no breach of fiduciary duty requirement. Id., at 627. The Eighth Circuit further concluded that O’Hagan’s mail fraud and money laundering convictions rested on violations of the securities laws, and therefore could not stand once the securities fraud convictions were reversed. Id., at 627-628. Judge Fagg, dissenting, stated that he would recognize and enforce the misappropriation theory, and would hold that the SEC did not exceed its rulemaking authority when it adopted Rule 14e-3(a) without requiring proof of a breach of fiduciary duty. Id., at 628. Decisions of the Courts of Appeals are in conflict on the propriety of the misappropriation theory under § 10(b) and Rule 10b-5, see infra this page and 650, and n. 3, and on the legitimacy of Rule 14e-3(a) under § 14(e), see infra, at 669-670. We granted certiorari, 519 U. S. 1087 (1997), and now reverse the Eighth Circuit’s judgment. II We address first the Court of Appeals reversal of 0 Ha-gan’s convictions under" }, { "docid": "22971757", "title": "", "text": "supra, 71 Geo.L.J. at 1356 (“By comparison, the Commission’s rule-making authority under section 10(b) does not include the power to define manipulative or deceptive” acts or to adopt pro-phylatic measures.). Indeed, in Chiarella, the Court even distinguished sections 10(b) and 14(e). The Court acknowledged that the SEC had recently acted pursuant to its rulemaking authority under section 14(e) to bar warehousing, a form of insider trading involving tender offers: In this case, as in warehousing, a buyer of securities purchases stock in a target corporation on the basis of market information which is unknown to the seller. In both of these situations, the seller’s behavior presumably would be altered if he had the nonpublic information. Significantly, however, the Commission has acted to bar warehousing under its authority to regulate tender offers [citing proposed Rule 14e-3] after recognizing that action under § 10(b) would rest on a “somewhat different theory” than that previously used to regulate insider trading as fraudulent activity. Chiarella, 445 U.S. at 234, 100 S.Ct. at 1117-18 (footnotes omitted). That “somewhat different theory” is one that does not embrace “any fiduciary duty to [the target] company or its shareholders.” 1 SEC Institutional Investor Study Report, H.R.Doc. No. 64, 92nd Cong. 1st Sess., pt. 1, at xxxii (1971) (cited in Chiarella, 445 U.S. at 234 n. 19, 100 S.Ct. at 1118 n. 19). Significantly, the Chiarella Court did not disapprove of this exercise of the SEC’s rulemaking power under section 14(e). Finally, Chiarella faced not only statutory silence on the issue before it but also administrative reticence. Neither the language of Rule 10b-5, SEC discussions of the rule, nor administrative interpretations of the rule offered any evidence that the SEC, in drafting Rule 10b-5, intended the rule to go beyond common law fraud. See Rule 10b-5 (referring to “artifice to defraud” and to “fraud ... upon any person”); see also Chiarella, 445 U.S. at 226, 100 S.Ct. at 1113 (“When Rule 10b-5 was promulgated in 1942, the SEC did not dis cuss the possibility that failure to provide information might run afoul of § 10(b).”) (footnote omitted); id. at" }, { "docid": "22971857", "title": "", "text": "“theory” as “one that does not embrace ‘any fiduciary duty to the [target] company or its shareholders,’ ” quoting the Report at xxxii. In fact, the Report only states that people who plan takeovers do not “usually have any fiduciary duty to [the target] company or its shareholders.” Further, the majority vests significance in the fact that “the Chiarella Court did not disapprove of this exercise of the SEC’s rulemaking power under section 14(e).” Such a disapproval would have been wholly gratuitous in the circumstances. In sum, this passage cannot fairly be read as obviating the fact that Chiarella establishes a general rule linking securities fraud to a breach of fiduciary duty, and that rule 14e-3(a) represents an obvious effort by the SEC to circumvent that rule by exercising an authority that has not been entrusted to that body. Schreiber, as I have noted, establishes that section 14(e) was modeled upon section 10(b) and rule 10b-5, see 472 U.S. at 10 n. 10, 105 S.Ct. at 2463 n. 10, thus reinforcing the precedential value of Chiarella for the present case; and discountenances any notion that the 1970 amendment to section 14(e) intended any change in the meaning of the fundamental term “manipulative,” see 472 U.S. at 12 n. 11, 105 S.Ct. at 2464 n. 11, undercutting the notion that the term “fraudulent” was invested by the same amendment with the novel content for which the SEC contends. Dirks v. SEC, 463 U.S. 646, 653, 103 S.Ct. 3255, 3260-61, 77 L.Ed.2d 911 (1983), explicitly rejected, in the section 10(b)/rule 10b-5 context, the SEC’s view “that anyone who knowingly receives nonpublic material information from an insider has a fiduciary duty to disclose before trading.” Rule 14e-3(a) purports to avoid the impact of Dirks by simply discarding the concept of fiduciary duty in the tender offer context. I am aware, of course, that we ordinarily defer to the interpretation of a statute provided by an agency charged with its enforcement. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984); IBT" }, { "docid": "3081228", "title": "", "text": "63 L.Ed.2d 348 (1979); Dirks v. SEC, 463 U.S. 646, 103 S.Ct. 3255, 77 L.Ed.2d 911 (1983). Defendant attempts to minimize this fact by noting that “the courts have already recognized the virtual identity between the language in § 10(b) and that in § 14(e). See, e.g., Schreiber v. Burlington Northern, Inc., 472 U.S. 1, 10 [105 S.Ct. 2458, 2463, 86 L.Ed.2d 1] (1985); Chris-Craft Industries, Inc. v. Piper Aircraft Corp., 480 F.2d 341 (2d Cir.), cert. denied, 414 U.S. 910 [94 5.Ct. 231, 38 L.Ed.2d 148] (1973).” Def. Reply Mem. at 3 n. 2. By implying that the two provisions are identical and are intended to cover the same transactions, defendant, however, presents an obscured picture of the Supreme Court’s analysis. In Schreiber, the Supreme Court did note that “it is often assumed that § 14(e) was modeled on § 10(b) ...” Id. 472 U.S. at 10 n. 10, 105 S.Ct. at 2463 n. 10. But the Court also explained that § 14(e) supplements other disclosure provisions in the Williams Act and requires disclosure “more explicitly addressed to the tender offer context than that required by § 10(b).” Id. at 11, 105 S.Ct. at 2464. The fact that one provision is modeled on another does not necessarily indicate an identical reach. Defendant also emphasizes the fact that “[t]he Second Circuit has recognized that the standards used to interpret § 10(b) and § 14(e) are virtually identical.” Def. Reply Mem. at 2 (citations omitted). That may be so. But a court may use the same standards to evaluate two different statutes and thereupon reach two different conclusions. Moreover, it remains unclear why Congress would go to the trouble of passing what defendant, in effect, contends is a superfluous and wholly repetitive statutory provision. The more compelling conclusion is that Congress did not intend such a result. In addition, defendant mistakenly relies on Schreiber v. Burlington Northern, Inc., 472 U.S. 1, 10, 105 S.Ct. 2458, 2463, 86 L.Ed.2d 1 (1985) for the proposition that “the Supreme Court has held that the reach of § 14(e) should be interpreted as equivalent, at" }, { "docid": "3081226", "title": "", "text": "at 1190-91. Congress delegated a different and greater level of authority to the SEC pursuant to § 14(e) than it had pursuant to § 10(b). With the 1970 amendment to § 14(e), Congress specifically authorized the SEC not only to define fraud but also to “prescribe means reasonably designed to prevent” fraudulent acts and practices. That provision “gives the [SEC] latitude to regulate nondeceptive activities as a ‘reasonably designed’ means of preventing manipulative acts ...” Schreiber, supra 472 U.S. at 11 n. 11, 105 S.Ct. at 2464 n. 11 (emphasis added). The provision goes beyond the authority that was made available to the SEC pursuant to § 10(b). The Court’s review of Rule 14e-3’s history— with its special emphasis on both disclosure in the specific context of tender offers and means reasonably designed to prevent fraud — satisfies the Court that Congress intended to permit the SEC to promulgate a “disclose or abstain from trading” rule along the lines of 14e-3. The Court’s conclusion is strengthened by Congressional enactment of § 21(d) of the Insider Trading Sanctions Act of 1984 (“ITSA”), 15 U.S.C. § 78u(d). That Act provides for the imposition of treble civil penalties on those who violate SEC rules and regulations “by purchasing or selling a security while in possession of material nonpublic information ...” 15 U.S.C. § 78u(d)(2)(A). Rule 14e-3 makes illegal just that sort of transaction. Indeed, in 1983, Congress was specifically made aware that a violation of Rule 14e-3 would trigger the civil liability outlined in ITSA. See H.R.Rep. No. 355, 98th Cong., 1st Sess. 13 n. 20 (1983). The adoption of ITSA provides further indication of Congressional approval of Rule 14e-3. See Zemel v. Rusk, 381 U.S. 1,12, 85 S.Ct. 1271, 1278, 14 L.Ed.2d 179 (1964) (“Congress .. .though it once again enacted legislation relating to [the issue at hand] left completely untouched the broad rule-making authority granted in the earlier Act.”) To support his position, Chestman relies on a series of cases that interprets not Rule 14e-3, but rather Rule 10b-5. See, e.g., Chiarella v. United States, 445 U.S. 222, 100 S.Ct. 1108," }, { "docid": "3081227", "title": "", "text": "Trading Sanctions Act of 1984 (“ITSA”), 15 U.S.C. § 78u(d). That Act provides for the imposition of treble civil penalties on those who violate SEC rules and regulations “by purchasing or selling a security while in possession of material nonpublic information ...” 15 U.S.C. § 78u(d)(2)(A). Rule 14e-3 makes illegal just that sort of transaction. Indeed, in 1983, Congress was specifically made aware that a violation of Rule 14e-3 would trigger the civil liability outlined in ITSA. See H.R.Rep. No. 355, 98th Cong., 1st Sess. 13 n. 20 (1983). The adoption of ITSA provides further indication of Congressional approval of Rule 14e-3. See Zemel v. Rusk, 381 U.S. 1,12, 85 S.Ct. 1271, 1278, 14 L.Ed.2d 179 (1964) (“Congress .. .though it once again enacted legislation relating to [the issue at hand] left completely untouched the broad rule-making authority granted in the earlier Act.”) To support his position, Chestman relies on a series of cases that interprets not Rule 14e-3, but rather Rule 10b-5. See, e.g., Chiarella v. United States, 445 U.S. 222, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1979); Dirks v. SEC, 463 U.S. 646, 103 S.Ct. 3255, 77 L.Ed.2d 911 (1983). Defendant attempts to minimize this fact by noting that “the courts have already recognized the virtual identity between the language in § 10(b) and that in § 14(e). See, e.g., Schreiber v. Burlington Northern, Inc., 472 U.S. 1, 10 [105 S.Ct. 2458, 2463, 86 L.Ed.2d 1] (1985); Chris-Craft Industries, Inc. v. Piper Aircraft Corp., 480 F.2d 341 (2d Cir.), cert. denied, 414 U.S. 910 [94 5.Ct. 231, 38 L.Ed.2d 148] (1973).” Def. Reply Mem. at 3 n. 2. By implying that the two provisions are identical and are intended to cover the same transactions, defendant, however, presents an obscured picture of the Supreme Court’s analysis. In Schreiber, the Supreme Court did note that “it is often assumed that § 14(e) was modeled on § 10(b) ...” Id. 472 U.S. at 10 n. 10, 105 S.Ct. at 2463 n. 10. But the Court also explained that § 14(e) supplements other disclosure provisions in the Williams Act and requires disclosure" }, { "docid": "22104797", "title": "", "text": "Court was “manipulative”; unlike “fraudulent,” the United States observes, “‘manipulative’ ... is ‘virtually a term of art when used in connection with the securities markets.’ ” Brief for United States 38, n. 20 (quoting Schreiber, 472 U. S., at 6). Most tellingly, the United States submits, Schreiber involved acts alleged to violate the self-operative provision in § 14(e)’s first sentence, a sentence containing language similar to § 10(b). But § 14(e)’s second sentence, containing the rulemaking authorization, the United States points out, does not track § 10(b), which simply authorizes the SEC to proscribe “manipulative or deceptive device[s] or contrivance[s].” Brief for United States 38. Instead, § 14(e)’s rulemaking prescription tracks § 15(c)(2)(D) of the Exchange Act, 15 U. S. C. § 78o(c)(2)(D), which concerns the conduct of broker-dealers in over-the-counter markets. See Brief for United States 38-39. Since 1938, see 52 Stat. 1075, § 15(c)(2) has given the Commission authority to “define, and prescribe means reasonably designed to prevent, such [broker-dealer] acts and practices as are fraudulent, deceptive, or manipulative.” 15 U. S. C. § 78o(c)(2)(D). When Congress added this same rulemaking language to § 14(e) in 1970, the Government states, the Commission had already used its § 15(c)(2) authority to reach beyond common-law fraud. See Brief for United States 39, n. 22. We need not resolve in this case whether the Commission’s authority under § 14(e) to “define . .. such acts and practices as are fraudulent” is broader than the Commission’s fraud-defining authority under § 10(b), for we agree with the United States that Rule 14e-3(a), as applied to cases of this genre, qualifies under § 14(e) as a “means reasonably designed to prevent” fraudulent trading on material, nonpublic information in the tender offer context. A prophylactic measure, because its mission is to prevent, typically encompasses more than the core activity prohibited. As we noted in Schreiber, § 14(e)’s rulemaking authorization gives the Commission “latitude,” even in the context of a term of art like “manipulative,” “to regulate nondeceptive activities as a 'reasonably designed’ means of preventing manipulative acts, without suggesting any change in the meaning of" }, { "docid": "22104793", "title": "", "text": "the trader owes a pre-existing fiduciary duty to respect the confidentiality of the information.” United States v. Chestman, 947 F. 2d 551, 557 (1991) (en banc) (emphasis added), cert. denied, 503 U. S. 1004 (1992). See also SEC v. Maio, 51 F. 3d 623, 635 (CA7 1995) (“Rule 14e-3 creates a duty to disclose material non-public information, or abstain from trading in stocks implicated by an impending tender offer, regardless of whether such information was obtained through a breach of fiduciary duty.” (emphasis added)); SEC v. Peters, 978 F. 2d 1162, 1165 (CA10 1992) (as written, Rule 14e-3(a) has no fiduciary duty requirement). In the Eighth Circuit’s view, because Rule 14e-3(a) applies whether or not the trading in question breaches a fiduciary duty, the regulation exceeds the SEC’s § 14(e) rulemaking authority. See 92 F. 3d, at 624, 627. Contra, Maio, 51 F. 3d, at 634-635 (CA7); Peters, 978 F. 2d, at 1165-1167 (CA10); Chestman, 947 F. 2d, at 556-563 (CA2) (all holding Rule 14e-3(a) a proper exercise of SEC’s statutory authority). In support of its holding, the Eighth Circuit relied on the text of § 14(e) and our decisions in Schreiber and Chiarella. See 92 F. 3d, at 624-627. The Eighth Circuit homed in on the essence of §14(e)’s rulemaking authorization: “[T]he statute empowers the SEC to 'define* and ‘prescribe means reasonably designed to prevent’ ‘acts and practices’ which are ‘fraudulent.’” Id., at 624. All that means, the Eighth Circuit found plain, is that the SEC may “identify and regulate,” in the tender offer context, “acts and practices” the law already defines as “fraudulent”; but, the Eighth Circuit maintained, the SEC may not “create its own definition of fraud.” Ibid. (internal quotation marks omitted). This Court, the Eighth Circuit pointed out, held in Schrei-ber that the word “manipulative” in the § 14(e) phrase “fraudulent, deceptive, or manipulative acts or practices” means just what the word means in § 10(b): Absent misrepresentation or nondisclosure, an act cannot be indicted as manipulative. See 92 F. 3d, at 625 (citing Schreiber, 472 U. S., at 7-8, and n. 6). Section 10(b) interpretations" } ]

[ { "docid": "15917375", "title": "", "text": "the Fourth Amendment. Plaintiffs Anobile, Omboni, Rahner, George Fulfree and Richard Ful-free were subject only to these types of searches, which we have concluded were within the parameters of the regulation. The claims of these plaintiffs therefore must fail. c. Consent to Search Defendants contend that plaintiffs consented to the challenged search by accepting and renewing their licenses, because the license application contained a waiver of plaintiffs’ rights to object to any search conducted at the Raceway. The district court agreed, and held that the licensees had consented to the search of their persons and property by signing the license applications and by accepting the licenses. .See Anobile, 66 F.Supp.2d at 487-88. On appeal, the plaintiffs argue that these waivers were invalid, contending that the waivers were neither knowing nor intelligent. We need only address whether these waivers provide effective consent for the dormitory searches, as we have already concluded that the remainder of the search was constitutional. It is axiomatic that a state actor does not need consent to conduct a constitutionally permissible search. It is “well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). “To ascertain whether consent is valid, courts examine the totality of all the circumstances to determine whether the consent was a product of that individual’s free and unconstrained choice, rather than a mere acquiescence in a show of authority.” United States v. Garcia, 56 F.3d 418, 422 (2d Cir.1995) (internal quotation marks and citations omitted). The official claiming that a search was consensual has the burden of demonstrating that the consent was given freely and voluntarily. See Schneckloth, 412 U.S. at 222, 93 S.Ct. 2041. We addressed a similar situation in Security and Law Enforcement Employees v. Carey, 737 F.2d 187 (2d Cir.1984). In that case, a group of corrections officers challenged strip and body cavity searches conducted at various New York correctional facilities. See id. at 200. Defendants pointed out" } ]

[ { "docid": "14719570", "title": "", "text": "de novo, construing the evidence in the light most favorable to the non-moving parties] and drawing all reasonable inferences in [their] favor.” Allianz Ins. Co. v. Lemer, 416 F.3d 109, 113 (2d Cir.2005). “[S]ummary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law.” D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir.), cert. denied, 524 U.S. 911, 118 S.Ct. 2075, 141 L.Ed.2d 151 (1998); see Fed.R.Civ.P. 56(a). II. Principles of Qualified Immunity Qualified immunity shields public officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “In general, public officials are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights.” Holcomb v. Lykens, 337 F.3d 217, 220 (2d Cir.2003) (internal quotation marks omitted). A right is “‘clearly established’” when “[t]he contours of the right ... [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Qualified immunity is an “affirmative defense,” Gomez v. Toledo, 446 U.S. 635, 636, 639-41, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980), and “it is incumbent upon the defendant to plead[ ] and adequately develop” that defense, Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir.2007) (internal quotation marks omitted). In this Circuit, “[e]ven where the law is ‘clearly established’ and the scope of an official’s permissible conduct is ‘clearly defined,’ the qualified immunity defense also protects an official if it was ‘objectively reasonable’ for him at the time of the challenged action to believe his acts were lawful.” Taravella v. Town of Wolcott, 599 F.3d 129, 134 (2d Cir.2010) (some internal quotation marks omitted); accord Walczyk v." }, { "docid": "17106073", "title": "", "text": "condition (or capacity) was diminished. See id.; Sawyer, 441 F.3d at 895. In sum, on these facts, the only objectively reasonable conclusion we can draw is that Mr. Jones’s consent was freely and voluntarily given. And there is no factual support for the view that his consent was borne out of duress or coercion. See United States v. McKneely, 6 F.3d 1447, 1453 (10th Cir.1993); United States v. Iribe, 11 F.3d 1553, 1557 (10th Cir.1993) (holding that the presence of five officers did not outweigh the numerous factors indicating that the resident voluntarily consented, including that the defendant voluntarily allowed the officers to enter the house, that she was not coerced, frightened or otherwise ' threatened, that she had a cordial conversation with officers spoken in low volume, and that the officers made no promises or threats in an attempt to extract her consent). Voluntariness aside, in his second argument, Mr. Jones contends that he never actually- consented to the officers’ entrance into his residence when he turned and walked away from them. We note at the outset that the fact that Mr. Jones did not give explicit consent — oral or written— to the Missouri officers to enter his residence is not determinative. An implied consent to search would be no less valid. See United States v. Patten, 183 F.3d 1190, 1192-95 (10th Cir.1999) (holding that consent to search was valid where the officer repeatedly asked the defendant to open his suitcase and in response the defendant did so gradually); United States v. Gordon, 173 F.3d 761, 766 (10th Cir.1999) (“When [the officer] encountered the locked bag, she asked [the defendant], ‘Can you open that?’ [The defendant] apparently did not respond verbally but removed the key from his pocket and handed it to [the officer].” (citation omitted)); see also Carter, 378 F.3d at 587 (“Consent to a search may be in the form of words, gesture, or conduct.” (citation omitted) (internal quotation marks omitted)). In other words, if Mr. Jones said or did something that permitted the Missouri officers to form a reasonable belief that Mr. Jones was authorizing" }, { "docid": "3483618", "title": "", "text": "stating that “[e]ven where the law is ‘clearly established’ and the scope of an official's permissible conduct is 'clearly defined,’ the qualified immunity defense also protects an official if it was ‘objectively reasonable’ for him at the time of the challenged action to believe his acts were lawful.” Taravella v. Town of Wolcott, 599 F.3d 129, 134 (2d Cir.2010) (some internal quotation marks omitted); accord Southerland v. City of N.Y., 680 F.3d 127, 141-42 (2012), cert. denied, - U.S. -, 133 S.Ct. 980, 184 L.Ed.2d 773 (2013). This interpretation is not without controversy, see, e.g., Walczyk v. Rio, 496 F.3d 139, 165-66 (2d Cir.2007) (Sotomayor, J., concurring) (describing the gloss as a \"doctrinal misstatement[]” and stating that \"whether a right is clearly established is the same question as whether a reasonable officer would have known that the conduct in question was unlawful” (emphasis in original)). We need, not, however, address the question of whether it would have been objectively reasonable for the individual defendants here to believe that their conduct was lawful even if the constitutional right asserted by Matusick were clearly established — the defendants have never argued this basis for qualified immunity. And in any event, we conclude that the right at issue was not clearly established for the purposes of this defense. . Although we highlight the district court's jury instructions as an articulation of the district court's understanding of the law governing Matusick’s claims, the court’s denial of qualified immunity, insofar as it does not involve the resolution of a dispute of fact, is \"a question of law better left for the court to decide.” Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir.2003) (internal quotation marks omitted). We therefore review the district court’s denial of qualified immunity de novo. See Arlio v. Lively, 474 F.3d 46, 51 (2d Cir.2007) (\"We review a denial of qualified immunity de novo.”); Anderson v. Recore, 446 F.3d 324, 328 (2d Cir.2006) (same). . Although it is clear that the Constitution protects a right to form intimate associations with other individuals or small groups, the origin of this right is" }, { "docid": "4394895", "title": "", "text": "under § 1983 if either (1) their conduct did not violate clearly established rights of which a reasonable person would have known, or (2) it was objectively reasonable [for them] to believe that their acts did not violate these clearly established rights.” Cornejo v. Bell, 592 F.3d 121, 128 (2d Cir.2010); see also, e.g., Taravella v. Town of Wolcott, 599 F.3d 129, 134 (2d Cir.2010) (“Even where the law is ‘clearly established’ and the scope of an official’s permissible conduct is ‘clearly defined,’ the qualified immunity defense also protects an official if it was ‘objectively reasonable’ for him at the time of the challenged action to believe his acts were lawful.” (internal quotation marks omitted)); Okin v. Village of Com-wall-On-Hudson Police Dep’t, 577 F.3d 415, 433 (2d Cir.2009) (“A police officer who has an objectively reasonable belief that his actions are lawful is entitled to qualified immunity.”). “Ordinarily, determining whether official conduct was objectively reasonable requires examination of the information possessed by the officials at that time (without consideration of subjective intent).” Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 106 (2d Cir.2003). “In an unlawful arrest action, an officer is ... subject to suit only if his ‘judgment was so flawed that no reasonable officer would have made a similar choice.’ ” Provost, 262 F.3d at 160 (quoting Lennon v. Miller, 66 F.3d 416, 425 (2d Cir.1995)). “A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.” Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). III. Novarro’s Qualified Immunity We assume here, not without reason, that when Novarro arrested Amore he violated a constitutional right of Amore not to be arrested for activity made criminal by section 240.35(3), which had been held unconstitutional by the New York Court of Appeals. Cf. Lemon v. Kurtzman, 411 U.S. 192, 207-08, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973) (plurality opinion) (indicating that a statute is a legal basis for" }, { "docid": "22278759", "title": "", "text": "to the search of his belongings, specifically, a knapsack and red plastic bag. He is wrong. The law in this circuit is well settled that a third party’s consent will validate a search of places or items in which another maintains a privacy interest if two conditions are satisfied: the third party had (1) “ ‘access to the area searched,’ ” and (2) either “ ‘(a) common authority over the area; or (b) a substantial interest in the area; or (c) permission to gain access [to the area].’ ” Ehrlich v. Town of Glastonbury, 348 F.3d 48, 53 (2d Cir.2003) (quoting United States v. Davis, 967 F.2d 84, 87 (2d Cir.1992)). In this case, there is no question that Bean, as the lessor and resident of the apartment at issue, had the access and authority necessary to consent to a search of the entire premises. Thus, her open-ended consent would permit the search and seizure of any items found in the apartment with the exception of those “obviously” belonging to another person. United States v. Zapatar-Tamallo, 833 F.2d 25, 27 (2d Cir.1987) (per curiam) (internal quotation marks omitted). To the extent Snype attempts to fit himself within this exception, we note that it is not enough for him to offer on appeal the conclusory argument that law enforcement officers “had no objectively reasonable basis for concluding” that Bean had access to or any interest in the seized knapsack and red plastic bag. Appellant Br. 35. Rather, Snype was obliged to adduce credible evidence demonstrating that these items were obviously and exclusively his. See United States v. Zapata-Tamallo, 833 F.2d at 27. The burden is not easily satisfied. In Zapata-Tamallo, another case in which an apartment guest challenged the scope of his host’s consent to search, an officer seized a blue duffel bag full of cocaine from under a bed. Although the same officer had earlier seen Zapata-Ta-mallo carry the blue bag into the apartment, this court ruled that the observed fact was insufficient to prove that the bag obviously and exclusively belonged to Zapata-Tamallo. See id. This conclusion compels the" }, { "docid": "22969441", "title": "", "text": "the case on summary judgment in November 2011, concluding that the officers wete entitled to qualified immunity for the arrest because there was “arguable probable cause.” It also concluded that they were entitled to qualified immunity for the search because the law on body cavity searches was not clearly established when the search occurred, Hall having been decided (in 2008) two years after the search. The claims against the City and County were dismissed because Gonzalez alleged only vicarious liability. DISCUSSION The Court reviews de novo a decision on a motion for summary judgment. Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 763 (2d Cir.2002); see also Miller v. Wolpoff & Ábramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Miller, 321 F.3d at 300. In assessing a motion for summary judgment, a Court is “required to -resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment [was granted].” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (internal quotation marks omitted). I The doctrine of qualified immunity protects government officials from suit if “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The issues on qualified immunity are: (1) whether plaintiff has shown facts making out violation of a constitutional right; (2) if so, whether that right was “clearly established”; and (3) even if the right was “clearly established,” whether it was “objectively reasonable” for the officer to believe the conduct at issue was lawful. Taravella v. Town of Wolcott, 599 F.3d 129, 133-34 (2d Cir.2010). To be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)." }, { "docid": "22566991", "title": "", "text": "States v. Rosario, 962 F.2d 733, 738 (7th Cir.1992) (noting that “the Fourth Amendment makes no insistence that the decisions of government agents always be correct. Police officers would be held to an impossibly high standard if expected to carry out their duties infallibly, and the courts have long recognized that mistakes will occur.” (internal citation omitted)). An individual’s consent remains valid, and items that law enforcement find as a result of the consent are admissible, until someone withdraws the consent. Forman v. Richmond Police Dept., 104 F.3d 950, 960 (7th Cir.1997). As this Court has previously observed, the third-party consent exception to the warrant requirement is premised on the assumption of the risk concept. See James, 571 F.3d at 713; Groves, 530 F.3d at 509. Accordingly, common-authority rights under the Fourth Amendment can be broader than the rights that property law provides. Randolph, 547 U.S. at 110, 126 S.Ct. at 1521. As the Supreme Court has reasoned: The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at 993 (internal citations omitted); see also Frazier, 394 U.S. at 740, 89 S.Ct. at 1425 (“Petitioner argues that Rawls only had actual permission to use one compartment of the bag and that he had no authority to consent to a search of the other compartments. We will not, however, engage in such metaphysical subtleties in judging the efficacy of Rawls’ consent. Petitioner, in allowing Rawls to use the bag and in leaving it in his house, must be taken to have assumed the risk that Rawls would allow someone else to look inside.”); United States v." }, { "docid": "12399179", "title": "", "text": "(11th Cir.2002). Finally, the scope of a search based on consent may not exceed the scope of the given consent. Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991). “The standard for measuring the scope of ... consent ... is that of ‘objective’ reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the [individual giving the consent]?” Id.; Zapata, 180 F.3d at 1242. Obtaining valid consent when the property to be searched is controlled by more than one person is hardly a new situation for the Supreme Court or for the lower federal courts. In United States v. Matlock, the Supreme Court, after reviewing the long-established practice of the circuits, confirmed that “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” 415 U.S. 164, 170, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974). Notably, in addressing how courts ought to determine whether an individual has common authority over the object of the search, the Court expressed its impatience with “metaphysical subtleties” in earlier cases and specifically eschewed any reliance on the “historical and legal refinements” in the law of property. Id. at 171 & n. 7, 94 S.Ct. at 993 & n. 7 (quoting Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969) (internal quotation marks omitted)). Rather, held the Court: The [common] authority which justifies the third-party consent rests ... on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. Id. at 171 n. 7, 94 S.Ct. at 993 n. 7. With this legal landscape before us, we turn to an examination of Randolph. Randolph presented the Supreme Court with a" }, { "docid": "3514214", "title": "", "text": "that even if a jury would be justified in finding that the consents were the product of police coercion, an objectively reasonable police officer in the position of these defendants could have believed that his actions were lawful. Our review of the district court’s qualified immunity determination is de novo. Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 1023, 127 L.Ed.2d 344 (1994); Frazell v. Flanigan, 102 F.3d 877, 886 (7th Cir.1996). The doctrine of qualified immunity shields government officials who perform discretionary functions from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The doctrine serves to give “public officials the benefit of legal doubts by relieving them from having to decide, at their financial peril, how judges will decide future cases.” Kernats v. O’Sullivan, 35 F.3d 1171, 1176 (7th Cir.1994) (internal citation omitted). The test for determining whether a public official is entitled to qualified immunity is objective; we are concerned with whether a reasonable police officer could have believed that defendants’ conduct was lawful “in light of clearly established law and the information [the officers] possessed” at the time. Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987); Frazell, 102 F.3d at 886. Like the district court, we need not decide whether a reasonable jury could conclude that the consents here were involuntary because we agree with the lower court that reasonable police officers in the position of these defendants could have believed that their search of Valance’s vehicle was constitutional in light of the consents they had obtained. Initially, we note that Valance has come forward with no case clearly establishing as of May 28, 1995, that a consent to search would be deemed involuntary in circumstances similar to those here. More importantly, our own case law did not clearly establish by that date that Valance’s oral and written consents were invalid. Indeed, prior to May 28,1995," }, { "docid": "12876876", "title": "", "text": "Br. 42, they ask us to disregard the jury’s findings to the contrary. In light of the existence of a firm factual foundation for the jury’s finding on this score, this is something we plainly cannot do. See Tennant v. Peona & Pekin Union Railway, 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520 (1944) (“Courts are not free to reweigh the evidence and set aside the jury verdict .merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.”). C. The Violation of Clearly Established Law Having concluded that the defendants’ falsifications constituted a violation of Morse’s constitutional rights, we must next determine whether the falsifications violated clearly established law that sufficiently warned the defendants that their conduct was unconstitutional. We conclude that they did. “Qualified immunity protects officials from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Taravella v. Town of Wolcott, 599 F.3d 129, 133 (2d Cir.2010) (internal quotation marks omitted). To be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). This permits a finding of liability even when “the very action in question has [not] previously been held unlawful,” insofar as, “in the light of pre-existing law[,] the unlawfulness [is] apparent.” Id. Qualified immunity therefore only applies if the official action was “objectively legally reasonable in light of the legal rules that were clearly established at the time it was taken.” X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir.1999) (alterations omitted). We conclude that the right in question was clearly established such that the defendants are not entitled to qualified immunity. Although there is no prior decision of ours precisely equating the fraudulent omission of factual information from a document with the affirmative perpetration of a falsehood, Ricciuti and its progeny, including Zahrey," }, { "docid": "9743746", "title": "", "text": "previous permits in Lynch's search. However, this contention by counsel does not comport with the record. Agent Lynch’s only stated purpose in entering Pal-mieri's yard was to conduct an inspection in reference to Palmieri’s application for an additional permit. See October 8, 2002, Lynch Declaration. Even if the previous permits had been an issue in this case, they could not provide sufficient warrant for this invasion of Palmi-eri’s Fourth Amendment rights. The prior permits obtained by Palmieri merely stated that “the permitted site ... is subject to inspection at reasonable hours and intervals by an authorized representative of the [DEC] to determine whether the permittee is complying with this permit\" The permits' bare references to inspections at reasonable hours and intervals should not be held to encompass unannounced inspections conducted without the property owner’s expressed consent. Indeed, in Anobile v. Pelligrino, we held that the plaintiffs’ signatures on horse racing license applications, which contained an expressed waiver of the right to object to searches conducted at the raceway, did not constitute an effective consent to residential searches. 303 F.3d 107, 123-25 (2d Cir.2002). Furthermore, even if the permit application or the prior permits were somehow deemed to be consent to some sort of inspection, Palmi-eri could not have been more clear that he intended to exercise his Fourth Amendment right to exclude DEC agents from his home and yard. In addition to enclosing his property in layers of fences and installing large, colorful, and otherwise prominent \"Private Property — No Trespassing” and \"Beware of Dog,” signs, he, on several occasions, issued specific written directions to the DEC to stay off of his property. See ante at 76. This certainly qualifies as an unmistakable (and legally enforceable) revocation of any initial, implicit consent. See Florida v. Jimeno, 500 U.S. 248, 252, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) (\"A suspect may of course delimit as he chooses the scope of the search to which he consents.”). . Agent Lynch so states in her October 8, 2002, Declaration. She also explained to Pal-mieri that this was her purpose in traversing his yard" }, { "docid": "3514213", "title": "", "text": "guns by the time Wisel asked Valance for permission to search his vehicle. Finally, defendants emphasize that Valance was not handcuffed when he orally consented to the search or when he later provided a written consent. Valance insists that because both sides have pointed to facts supporting their respective positions, the district court should not have deemed the consents voluntary as a matter of law but should have permitted a jury to consider, based on the totality of the circumstances, whether the consents were voluntary. See Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2047-48. Although Judge Lee’s opinion suggests that he believed the consents were voluntary, the court did not actually resolve that question in granting summary judgment to defendants. Rather than concluding that no reasonable jury could find the consents involuntary, the court determined that the officers were entitled to qualified immunity because a reasonable police officer in the position of these defendants could have believed that a valid consent had been obtained. (See R. 48 at 11-14.) Thus, the court essentially determined that even if a jury would be justified in finding that the consents were the product of police coercion, an objectively reasonable police officer in the position of these defendants could have believed that his actions were lawful. Our review of the district court’s qualified immunity determination is de novo. Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 1023, 127 L.Ed.2d 344 (1994); Frazell v. Flanigan, 102 F.3d 877, 886 (7th Cir.1996). The doctrine of qualified immunity shields government officials who perform discretionary functions from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The doctrine serves to give “public officials the benefit of legal doubts by relieving them from having to decide, at their financial peril, how judges will decide future cases.” Kernats v. O’Sullivan, 35 F.3d 1171, 1176 (7th Cir.1994) (internal citation omitted). The test for determining whether a public" }, { "docid": "9743745", "title": "", "text": "relationships to minor students as defined by state regulations and guidelines aimed at the unique concerns germane to students' health and security. See Vemonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 656, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995); New Jersey v. T.L.O., 469 U.S. 325, 336-341, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). . I employ this term in its modern, rather than its more archaic, usage, meaning a \"dwelling house together with the curtilage, including any outbuildings.” BLACK'S LAW DICTIONARY 1004 (7th ed.1999). . The majority does not — and could not— rely on any allegation that Palmieri somehow consented to the search by submitting the permit application. As a threshold matter, nothing in the permit application could be construed as any form of acceptable consent. The permit application was entirely silent as to the need for any inspection of the property. At oral argument, defendants, for the first time, contended that Palmieri's application for a new permit was, in part, an application for a modification of existing permits, thereby implicating those previous permits in Lynch's search. However, this contention by counsel does not comport with the record. Agent Lynch’s only stated purpose in entering Pal-mieri's yard was to conduct an inspection in reference to Palmieri’s application for an additional permit. See October 8, 2002, Lynch Declaration. Even if the previous permits had been an issue in this case, they could not provide sufficient warrant for this invasion of Palmi-eri’s Fourth Amendment rights. The prior permits obtained by Palmieri merely stated that “the permitted site ... is subject to inspection at reasonable hours and intervals by an authorized representative of the [DEC] to determine whether the permittee is complying with this permit\" The permits' bare references to inspections at reasonable hours and intervals should not be held to encompass unannounced inspections conducted without the property owner’s expressed consent. Indeed, in Anobile v. Pelligrino, we held that the plaintiffs’ signatures on horse racing license applications, which contained an expressed waiver of the right to object to searches conducted at the raceway, did not constitute an effective consent to" }, { "docid": "17106066", "title": "", "text": "is not satisfied by showing a mere submission to a claim of lawful authority.”); Cruz-Mendez, 467 F.3d at 1265 (“[C]onsent is valid only if it is freely and voluntarily given.” (citation omitted) (internal quotation marks omitted)); see also United States v. Carter, 378 F.3d 584, 587 (6th Cir.2004) (“In whatever form, consent has effect only if it is given freely and voluntarily.”). In determining the voluntariness of consent, the Fourth Amendment requires that “a consent not be coerced, by-explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion [i]s applied, the resulting ‘consent’ would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.” Schneckloth, 412 U.S. at 228, 93 S.Ct. 2041. It is the government’s “burden of proving that consent is given freely and voluntarily.” Harrison, 639 F.3d at 1278. Further, “[t]he question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Id. (quoting Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041) (internal quotation marks omitted). When considering the totality of the circumstances, some of the relevant considerations include: physical mistreatment, use of violence, threats, promises, inducements, deception, trickery, or an aggressive tone, the physical and mental condition and capacity of the defendant, the number of officers on the scene, and the display of police weapons. Whether an officer reads a defendant his Miranda rights, obtains consent pursuant to a claim of lawful authority, or informs a defendant of his or her right to refuse consent also are factors to consider in determining whether consent given was voluntary under the totality of the circumstances. Id. (quoting Sawyer, 441 F.3d at 895) (internal quotation marks omitted). As previously noted, Mr. Jones’s license was in the possession of the Missouri officers when they entered his residence. Therefore, he was clearly seized under the Fourth Amendment. However, “[a] person may voluntarily consent to a search even while being legally detained.”" }, { "docid": "7799808", "title": "", "text": "v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991). The scope of a consent to search “is generally defined by its expressed object, and is limited by the breadth of the consent given.” United States v. Elliott, 107 F.3d 810, 814-15 (10th Cir.1997) (citations and internal quotation marks omitted). We view the evidence in the light most favorable to the government and must uphold a district court’s finding that a search is within the boundaries of the consent unless it is clearly erroneous. Id. In this case, the district court found that Pena’s consent to look into the motel room included the officer’s search of the bathroom. The court stated: [Ljooking into the bathroom and into that toilet bowl where the marijuana cigarettes were found[ ] was ... implied when the officer was permitted to examine, quote, the room. We are talking about a motel room, we are talking about the accommodation there and the bathroom is part of the accommodations. Tr. Yol. Ill at 129. We agree with the district court. A reasonable person would think that when he gives consent to search a motel room, his consent includes the small bathroom attached to the main room. We further conclude that the district court did not clearly err in finding that the defendant’s “go’ahead” response to Officer Devoti’s request to “look in” the motel room reasonably included a search into the area above the bathroom ceiling. Three factors persuade us in reaching this latter conclusion. First, at no point did Pena object to the officers’ search of the bathroom. He was not under arrest when Officers McDonald and Cannon went to the bathroom to conduct their search, though he was in the room. His failure to object to the officers’ entrance into and search of the bathroom “may be considered an indication that the search was within the scope of the consent.” United States v. Espinosa, 782 F.2d 888, 892 (10th Cir.1986). Second, we have consistently held that similarly phrased requests for consent to search are requests for a full search of the premises." }, { "docid": "14719571", "title": "", "text": "those rights.” Holcomb v. Lykens, 337 F.3d 217, 220 (2d Cir.2003) (internal quotation marks omitted). A right is “‘clearly established’” when “[t]he contours of the right ... [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Qualified immunity is an “affirmative defense,” Gomez v. Toledo, 446 U.S. 635, 636, 639-41, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980), and “it is incumbent upon the defendant to plead[ ] and adequately develop” that defense, Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir.2007) (internal quotation marks omitted). In this Circuit, “[e]ven where the law is ‘clearly established’ and the scope of an official’s permissible conduct is ‘clearly defined,’ the qualified immunity defense also protects an official if it was ‘objectively reasonable’ for him at the time of the challenged action to believe his acts were lawful.” Taravella v. Town of Wolcott, 599 F.3d 129, 134 (2d Cir.2010) (some internal quotation marks omitted); accord Walczyk v. Rio, 496 F.3d 139, 154 n. 16 (2d Cir.2007). In other words, a caseworker is also entitled to qualified immunity “if ‘officers of reasonable competence could disagree’ on the legality of the action at issue in its particular factual context.” Manganiello v. City of N.Y., 612 F.3d 149, 165 (2d Cir.2010) (quoting Walczyk, 496 F.3d at 154); see also Tenenbaum, 193 F.3d at 605 (applying same principle to “child welfare workers”). But see Taravella, 599 F.3d at 136-41 (Straub, J., dissenting) (stating that this prong of the qualified-immunity analysis “has no basis in Su preme Court precedent and has served to confuse the case law in this area”); Okin, 577 F.3d at 433 n. 11 (“[O]nce a court has found that the law was clearly established at the time of the challenged conduct and for the particular context in which it occurred, it is no defense for a police officer who violated this clearly established law to respond that he held an objectively reasonable belief that his conduct was lawful.”); Walczyk, 496 F.3d at 165-71" }, { "docid": "15917379", "title": "", "text": "acquiescence to a blanket waiver of the right to object to any future searches of the plaintiffs’ residences. We previously concluded that the Board’s interest in conducting such warrantless searches was outweighed by the plaintiffs’ high expectation of privacy in their homes, making the search unconstitutional. We therefore conclude that the demand embodied by the waiver provision in the license application is unreasonable, and we refuse to construe plaintiffs’ yearly license application as effective consent. Additionally, there is no evidence demonstrating that the plaintiffs were aware of their right to refuse to give consent to this unconstitutional search or indeed whether they could refuse and still obtain employment. See Sec. and Law Enforcement Employees, 737 F.2d at 202 n. 23. We therefore hold that plaintiffs’ acquiescence by signing the license application from year to year does not constitute consent, and does not render the dormitory search constitutional. 4. Qualified Immunity Having concluded that the dormitory search violated plaintiffs’ Fourth Amendment rights, we must now address whether Joel Leveson is entitled to qualified immunity. Although the district court concluded that no constitutional violation occurred, it also implicitly held that Leveson would be entitled to qualified immunity in any event because “the contours of the December 1997 administrative searches of highly regulated areas such as race tracks were not clearly established.” Anobile, 66 F.Supp.2d at 489. Because we disagree with the district court’s Fourth Amendment conclusion, we directly address the qualified immunity issue. In so doing, however, we agree with the district court’s implicit conclusion that Leveson is entitled to qualified immunity. The doctrine of qualified immunity provides immunity to government officials sued in their individual capacity in any of three situations: (1) if the conduct at issue is not prohibited by federal law; (2) even if the conduct was prohibited, if the plaintiffs right was not clearly established at the time of the conduct; or (3) if the defendant’s conduct was objectively legally reasonable in light of clearly established law. X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir.1999). We have already concluded that the plaintiffs whose rooms were" }, { "docid": "7799807", "title": "", "text": "consent in some situations”). Nevertheless, we find that the district court did not clearly err in determining that the police did not coerce the defendant into granting his consent. Although Officer Devoti came to Pena’s motel room with three other armed officers, none of the officers unholstered his firearm. The officers all remained outside the motel room until Pena gave them permission to enter. Pena does not assert, and the record does not support a conclusion, that the police officers conducted themselves in an unprofessional manner. We affirm the district court’s determination that the defendant consented to the search of' his motel room. B. Scope of Consent The defendant argues that even if he did consent to the search, the police exceeded the scope of that consent by searching the bathroom of the motel room. The standard for measuring the scope of an individual’s consent to search is that of “objective reasonableness,” asking what the typical rea sonable person would have understood to be the scope of his or her consent under the circumstances. Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991). The scope of a consent to search “is generally defined by its expressed object, and is limited by the breadth of the consent given.” United States v. Elliott, 107 F.3d 810, 814-15 (10th Cir.1997) (citations and internal quotation marks omitted). We view the evidence in the light most favorable to the government and must uphold a district court’s finding that a search is within the boundaries of the consent unless it is clearly erroneous. Id. In this case, the district court found that Pena’s consent to look into the motel room included the officer’s search of the bathroom. The court stated: [Ljooking into the bathroom and into that toilet bowl where the marijuana cigarettes were found[ ] was ... implied when the officer was permitted to examine, quote, the room. We are talking about a motel room, we are talking about the accommodation there and the bathroom is part of the accommodations. Tr. Yol. Ill at 129. We agree with the" }, { "docid": "22969442", "title": "", "text": "inferences in favor of the party against whom summary judgment [was granted].” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (internal quotation marks omitted). I The doctrine of qualified immunity protects government officials from suit if “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The issues on qualified immunity are: (1) whether plaintiff has shown facts making out violation of a constitutional right; (2) if so, whether that right was “clearly established”; and (3) even if the right was “clearly established,” whether it was “objectively reasonable” for the officer to believe the conduct at issue was lawful. Taravella v. Town of Wolcott, 599 F.3d 129, 133-34 (2d Cir.2010). To be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In this way, qualified immunity shields official conduct that is “ ‘objectively legally reasonable in light of the legal rules that were clearly established at the time it was taken.’ ” X-Men Sec., Inc. v. Patctki, 196 F.3d 56, 66 (2d Cir.1999) (alterations omitted) (quoting Anderson, 483 U.S. at 639, 107 S.Ct. 3034); see also Taravella, 599 F.3d at 134-35. II A § 1983 claim for false arrest is substantially the same as a claim for false arrest under New York law. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996). “The existence of probable cause to arrest constitutes justification and is a complete defense to an action for false arrest, whether that action is brought under state law or under § 1983.” Id. (internal quotation marks omitted); see also Broughton v. State, 37 N.Y.2d 451, 456-58, 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975). A The first question as to qualified immunity is whether the officers violated Gonzalez’s rights by arresting him. That is, whether the officers had probable cause to arrest him at the" }, { "docid": "20333017", "title": "", "text": "of all the circumstances.” (internal quotation marks omitted)). As long as it is not coerced, the consent is valid, and “[therefore, knowledge of the right to refuse consent is not a requirement to a finding of voluntariness.” Garcia, 56 F.3d at 422; see also United States v. Drayton, 536 U.S. 194, 206, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) (“The Court has rejected in specific terms the suggestion that police officers must always inform citizens of their right to refuse when seeking permis sion to conduct a warrantless consent search”). Therefore, Plaintiffs’ allegation that they were not told that they had the right to decline the home visit (TAC ¶ 412), is relevant to the analysis of voluntariness, but is not dispositive. In the criminal context, some of the factors that bear upon the voluntariness of consent to a search include “whether the defendant was in custody and in handcuffs, whether there was a show of force, whether the agents told the defendant that a search warrant would be obtained, whether the defendant had knowledge of the right to refuse consent, and whether the defendant previously had refused to consent.” U.S. v. Echevarria, 692 F.Supp.2d 322, 336-37 (S.D.N.Y.2010); see also Drayton, 536 U.S. at 204, 122 S.Ct. 2105 (holding that consent was voluntary where there “was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, [and no] authoritative tone of voice.”); Isiofia, 370 F.3d at 232-34 (holding that consent was not voluntary where defendant was handcuffed to a table in his home for over thirty minutes, while “numerous law enforcement agents ... extracted detailed personal and financial information from him,” demanded his consent, yelled and used abusive language, and threatened him with jail and deportation); United States v. 90-23 201st St., 775 F.Supp.2d 545, 556 (E.D.N.Y. 2011) (noting that other factors relevant to coercion include the number of police officers, the time of day the search is conducted, and police persistence after the individual has refused consent). Because the voluntariness inquiry is concerned with the" } ]

[ { "docid": "3565592", "title": "", "text": "context. On the contrary, Congress in passing the statute expected that “a federal common law of rights and obligations under ERISA-regulated plans would develop.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 1557, 95 L.Ed.2d 39; accord Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 954, 103 L.Ed.2d 80; Fox Valley & Vicinity Construction Workers Pension Fund v. Brown, 897 F.2d 275, 281 (7th Cir.1990) (en bane), certiorari denied, 498 U.S. 820, 111 S.Ct. 67, 112 L.Ed.2d 41. Courts may develop such a federal common law only where ERISA itself “does not expressly address the issue before the court.” Nachwalter v. Christie, 805 F.2d 956, 959 (11th Cir.1986). Where the statute is silent, courts must construct a common law that effectuates the policies underlying ERISA. Black v. TIC Investment Corp., 900 F.2d 112, 114 (7th Cir.1990). In so doing, they may use state common law as a basis for new federal common law, but only to the extent that state law is not inconsistent with congressional policy concerns. Nachwalter, 805 F.2d at 960. “The ultimate objective is not to fulfill policy objectives of state law but to fulfill the congressional command embodied in the language and structure of the federal statute.” Fox Valley, 897 F.2d at 284 (Ripple, J., dissenting). The emerging ERISA common law will not always provide a substitute federal remedy for the preempted state law claim. Pohl, 956 F.2d at 128; Lister v. Stark, 890 F.2d 941, 946 (7th Cir.1989) (“the availability of a federal remedy is not a prerequisite for federal preemption”), certiorari denied, 498 U.S. 1011, 111 S.Ct. 579, 112 L.Ed.2d 584. In this case, if waiver is inapplicable in the ERISA context Mrs. Thomason will be without a remedy for her alleged harms, since her state law claims have been preempted. However, “[t]he policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA.”" } ]

[ { "docid": "23211425", "title": "", "text": "are cases that have taken a contrary position. In Consolidated Beef Indus., Inc. v. New York Life Ins. Co., 949 F.2d 960 (8th Cir.1991), cert. denied, 503 U.S. 985, 112 S.Ct. 1670, 118 L.Ed.2d 390 (1992), an employer sued an insurance professional for misrepresentation and other claims stemming from the sale of an ERISA plan. The employer argued that its claim arose out of the purchase of the plan and was therefore not preempted. The court held that the employer’s \"claims, such as inaccurate billings, incorrect interest rates and lack of annual statements to plan participants, arise directly from the administration of the plan.” Consolidated Beef, 949 F.2d at 964. In dicta the court said that \"even if [the employer’s] claims involved misrepresentation in the sale of the [plan], its claims still relate to the employee benefit plan.” Id. (citing Farlow v. Union Cent. Life Ins. Co., 874 F.2d 791, 794 (11th Cir.1989)). Similarly, in Farlow beneficiaries under a plan sued an insurer and insurance agent alleging, among other things, misrepresentation and negligence arising from the sale of an insurance policy. The beneficiaries alleged that the insurance agent \"misrepresented that the plan’s coverage was co-extensive with the [beneficiaries'] former plan’s coverage.” Farlow, 874 F.2d at 794. The court rejected the argument that claims involving misconduct in the sale and implementation of a plan do not relate to the plan. The court decided that state law claims \"not wholly remote in content from the [] plan” are preempted. Id. Applying this rule, the court held that the beneficiaries' claims were preempted. Id. See also Macomber v. Digital Equip. Corp., 865 F.Supp. 65 (D.N.H.1994) (former employee’s claims alleging wrongful conduct prior to adoption of ERISA plan and seeking benefits under plan, or damages as measured by benefits which plan would have otherwise provided, are preempted). We decline the defendants’ invitation to follow Consolidated Beef and Farlow. The courts in those cases relied heavily on what they regarded (at the time) as the Supreme Court's, \"expansive view of ERISA preemption.” See Farlow, 874 F.2d at 794; Consolidated Beef, 949 F.2d at 963. Neither" }, { "docid": "22820706", "title": "", "text": "481 U.S. 41, 56, 107 S.Ct. 1549, 1558, 95 L.Ed.2d 39 (1987). And, though Congress may preempt state law remedies without providing a corresponding remedy under federal law, see Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272, 1276 (6th Cir.1991) cert. dismissed, — U.S. -, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992); Phillips v. Amoco Oil Co., 799 F.2d 1464, 1470 (11th Cir.1986), cert. denied, 481 U.S. 1016, 107 S.Ct. 1893, 95 L.Ed.2d 500 (1987), some courts have concluded that because preemption, in the final analysis, turns on congressional purpose, if suits against non-fiduciaries may not lie under ERISA, Congress could not have aimed to preempt such actions. See Capital Mercury Shirt Corp. v. Employers Reinsurance Corp., 749 F.Supp. 926, 933-34 (W.D.Ark.1990); Munoz v. Prudential Ins. Co. of America, 633 F.Supp. 564, 571 (D.Colo.1986); see also Perry v. P*I*E Nationwide, Inc., 872 F.2d 157, 162 (6th Cir.1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1166, 107 L.Ed.2d 1068 (1990); Coleman v. General Elec. Co., 643 F.Supp. 1229, 1233-34 (E.D.Tenn.1986), aff'd mem., 822 F.2d 59 (6th Cir.1987). If an action against non-fiduciaries is not preempted, Congress’ scheme of bringing uniformity to the area of employee benefit plans, see, e.g., Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 9, 107 S.Ct. 2211, 2216, 96 L.Ed.2d 1 (1987), would be undermined insofar as the conduct and liability of non-fiduciaries would be assessed by varying state laws, while the conduct and liability of the fiduciary whom the third party is claimed to have knowingly assisted in breaching a duty would be governed by federal law. See Foltz v. U.S. News & World Report Inc., 627 F.Supp. 1143, 1176 (D.D.C.1986). Yet, on the other hand, if the availability of equitable relief against non-fiduciaries under § 502(a)(3) is read to mean that the scope of ERISA preemption extends to non-fiduciary conduct, see Gibson v. Prudential Ins. Co. of America, 915 F.2d 414, 417-18 (9th Cir.1990), the compelling federal interest in ensuring that employee benefit plan participants and beneficiaries obtain the benefits to which they are entitled will be thwarted because a party responsible for" }, { "docid": "11015629", "title": "", "text": "fraudulent statements about the nature of a benefits plan itself are preempted by ERISA. See, e.g., Olson v. General Dynamics Corp., 960 F.2d 1418, 1422-23 (9th Cir.1991), cert. denied, 504 U.S. 986, 112 S.Ct. 2968, 119 L.Ed.2d 588 (1992) (claim challenging oral misrepresentation regarding the level of benefits provided by a plan is preempted); Davidian v. Southern California Meat Cutters Union, 859 F.2d 134, 135 (9th Cir.1988) (claim against incorrect description of the insurance benefits of an ERISA plan is preempted). Other circuits agree. Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1218 (5th Cir.), cert. denied, — U.S. -, 113 S.Ct. 68, 121 L.Ed.2d 35 (1992) (claim based upon an employer’s misrepresentations regarding the terms of a plan itself is preempted); Consolidated Beef Industries, Inc. v. New York Life Ins. Co., 949 F.2d 960, 964 (8th Cir.1991), cert. denied, 503 U.S. 985, 112 S.Ct. 1670, 118 L.Ed.2d 390 (1992) (state law claims for misrepresentation in plan billings, interest rates, and annual statements are preempted); Degan v. Ford Motor Co., 869 F.2d 889, 894-95 (5th Cir.1989) (claim for breach of an oral agreement to pay early retirement benefits is preempted); Phillips v. Amoco Oil Co., 799 F.2d 1464, 1470 (11th Cir.1986), cert. denied, 481 U.S. 1016, 107 S.Ct. 1893, 95 L.Ed.2d 500 (1987) (claim challenging failure to disclose the terms of a benefit plan is preempted). Our holding today is not at odds with these cases because each involved fraud in the description of the plan itself. By contrast, the actions of US West officials involved allegedly fraudulent tax advice regarding lump sum distributions, not misrepresentations about the plan itself or benefits due. This analysis is buttressed by other case law. We have noted that a plaintiffs claim is generally not preempted if the employer had “any duty to her outside the proper administration of the benefit plan.” Gibson v. Prudential Ins. Co. of America, 915 F.2d 414, 417 (9th Cir.1990). In Gibson, we found that the plaintiff could not allege the existence of such a duty because “[tjhere would be no relationship or cause of action between the appellees" }, { "docid": "4397970", "title": "", "text": "483, 112 L.Ed.2d 474 (1990) (quoting Pilot Life, 481 U.S. at 47, 107 S.Ct. at 1552-53). Count I of Zuniga’s complaint alleges that Blue Cross breached the settlement agreement by “resurrecting the previously refuted allegation” of overutilization “as a reason for denial of his application to be an authorized provider for the [ERISA plan].” Clearly this claim “relates to” an employee welfare plan as it explicitly “refer[s] to such a plan.” FMC Corp., 498 U.S. at. 58, 111 S.Ct. at 407. Zuniga argues that ERISA does not preempt claims for which it does not provide a remedy. Perry v. P*I*E Nationwide, Inc., 872 F.2d 157, 162 (6th Cir.1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1166, 107 L.Ed.2d 1068 (1990). We have said that although “ERISA will not preempt state law claims based on wrongs for which ERISA provides no remedies[,] ... where rights are guaranteed by ERISA, the remedy for such rights under ERISA is exclusive. Moreover, Congress constructed ERISA so that the statute will preempt most state law claims.” International Resources v. New York Life Ins., 950 F.2d 294, 298 (6th Cir.1991) (citations omitted), cert. denied, — U.S. -, 112 S.Ct. 2941, 119 L.Ed.2d 565 (1992). “[T]he question whether a certain state action is pre-empted by federal law is one of congressional intent.” ... Where, as here, Congress has expressly included a broadly worded pre-emption provision in a comprehensive statute such as ERISA, our task of discerning congressional intent is considerably simplified. Ingersoll-Rand, 498 U.S. at 137-38, 111 S.Ct. at 482 (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1909-10, 85 L.Ed.2d 206 (1985)). “It is not the label placed on a state law claim that determines whether it is preempted, but whether in essence such a claim is for the recovery of an ERISA plan benefit.” Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272, 1276 (6th Cir.1991), cert. dismissed, — U.S. -, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992). That is exactly what Zuniga seeks here, the payment of benefits under the plan for his treatment of covered patients. Further, ERISA’s civil enforcement" }, { "docid": "2446008", "title": "", "text": "state law claims affect the insurance plan in too tenuous, remote, or peripheral a manner to be preempted, because the claims are based on misrepresentations Pankow made during the sale of the Manhattan Life policy to Young America, before Young America began administering the policy for its employees. See Consolidated Beef Indus., Inc. v. New York Life Ins. Co., 949 F.2d 960, 963 (8th Cir.1991), cert. denied, 503 U.S. 985, 112 S.Ct. 1670, 118 L.Ed.2d 390 (1992). We think the claims are probably preempted, see id. at 964, but summary judgment would be proper anyway because there is no evidence Pankow acted wrongfully during the sale of the Manhattan Life policy. It is the Finks’ position that Stanley was covered under the Manhattan Life policy, and Union Central added the active, full-time employment requirement for officers. Pankow presented undisputed evidence that he did not even know the group policy was transferred to Union Central until about two years after the transfer. We conclude the Finks have not presented evidence to show Pankow made misrepresentations about the policy or caused the Finks emotional distress. The district court also treated the Finks’ misrepresentation and infliction of emotional distress claims against Pankow as ERISA claims for breach of fiduciary duty. See Slice v. Sons of Norway, 978 F.2d 1045, 1046 (8th Cir.1992) (per curiam) (when ERISA preempts state law claims, court should consider whether claims state cause of action under ERISA or federal common law). As the district court correctly concluded, Pankow did not act in a fiduciary capacity toward the Finks. Individuals “who provide professional services to plan administrators ‘are not ERISA fiduciaries unless they “transcend the normal role” and exercise discretionary authority.’ ” Kerns v. Benefit Trust Life Ins. Co., 992 F.2d 214, 217-18 (8th Cir.1993) (quoting Martin v. Feilen, 965 F.2d 660, 669 (8th Cir.1992), cert. denied, 506 U.S. 1054, 113 S.Ct. 979, 122 L.Ed.2d 133 (1993)). Insurance agents can become fiduciaries by participating in the administration of a benefit plan, managing the plan’s assets, or providing investment advice for compensation about the plan’s money or property. See 29 U.S.C." }, { "docid": "4397971", "title": "", "text": "York Life Ins., 950 F.2d 294, 298 (6th Cir.1991) (citations omitted), cert. denied, — U.S. -, 112 S.Ct. 2941, 119 L.Ed.2d 565 (1992). “[T]he question whether a certain state action is pre-empted by federal law is one of congressional intent.” ... Where, as here, Congress has expressly included a broadly worded pre-emption provision in a comprehensive statute such as ERISA, our task of discerning congressional intent is considerably simplified. Ingersoll-Rand, 498 U.S. at 137-38, 111 S.Ct. at 482 (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1909-10, 85 L.Ed.2d 206 (1985)). “It is not the label placed on a state law claim that determines whether it is preempted, but whether in essence such a claim is for the recovery of an ERISA plan benefit.” Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272, 1276 (6th Cir.1991), cert. dismissed, — U.S. -, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992). That is exactly what Zuniga seeks here, the payment of benefits under the plan for his treatment of covered patients. Further, ERISA’s civil enforcement provision clearly provides this type of remedy. 29 U.S.C. § 1132 (1988 & Supp. V 1993). Although the remedy is not available to Zuniga, that does not mean that no remedy exists. Zuniga’s reliance on Perry is therefore unavailing. In Ingersollr-Rand, 498 U.S. at 140, 111 S.Ct. at 483, the court found that a claim for wrongful discharge was preempted by ERISA because that cause of action would be dependent upon — “relate to” — the existence of an ERISA plan. Similarly, ERISA preempts Zuniga’s breach of contract claim, as it necessarily relies on the existence and interpretation of the Chrysler and Ford employee benefit plans. Contrary to the dissent’s position, it is rather obvious that in order for Zuniga to prevail on his claim that Blue Cross breached the settlement agreement, the ERISA plans must be read. Under the settlement agreement, Zuniga was reinstated as a preferred provider. When, he abused this status, he was removed under the Ford plan, and his application to the Chrysler plan was denied. Zuniga’s claim has no basis" }, { "docid": "23211424", "title": "", "text": "Although the surcharges were intended to have an indirect economic effect on choices made by insurance purchasers, the Court concluded that EPJ[SA did not preempt New York's statute because [a]n indirect economic influence [] does not bind plan administrators to any particular choice and thus function as a regulation of an ERISA plan itself.... Nor does the indirect influence of the surcharges preclude uniform administrative practice or the provision of a uniform interstate benefit package if a plan wishes to provide one.... It is an influence that can affect a plan's shopping decisions, but it does not affect the fact that any plan will shop for the best deal it can get, surcharges or no surcharges. Id. at----, 115 S.Ct. at 1678-79. . Like the Court in Travelers we are not presented with state law that makes \"reference to” an ERISA plan. To be preempted on this basis, a law must on its face \"specifically refer” to ERISA plans. See Greater Washington Bd. of Trade, 506 U.S. at 130, 113 S.Ct. at 583-84. . There are cases that have taken a contrary position. In Consolidated Beef Indus., Inc. v. New York Life Ins. Co., 949 F.2d 960 (8th Cir.1991), cert. denied, 503 U.S. 985, 112 S.Ct. 1670, 118 L.Ed.2d 390 (1992), an employer sued an insurance professional for misrepresentation and other claims stemming from the sale of an ERISA plan. The employer argued that its claim arose out of the purchase of the plan and was therefore not preempted. The court held that the employer’s \"claims, such as inaccurate billings, incorrect interest rates and lack of annual statements to plan participants, arise directly from the administration of the plan.” Consolidated Beef, 949 F.2d at 964. In dicta the court said that \"even if [the employer’s] claims involved misrepresentation in the sale of the [plan], its claims still relate to the employee benefit plan.” Id. (citing Farlow v. Union Cent. Life Ins. Co., 874 F.2d 791, 794 (11th Cir.1989)). Similarly, in Farlow beneficiaries under a plan sued an insurer and insurance agent alleging, among other things, misrepresentation and negligence arising from" }, { "docid": "22473724", "title": "", "text": "Court seemed to. assume, without expressly deciding, that claims against nonfidueiaries would be preempted. The Court observed, however, that in order to expand the relief available under ERISA to include remedies against nonfidueiaries, more was needed than the general notion that ERISA was intended to protect beneficiaries. See id. — U.S. at -, 113 S.Ct. at 2071. Furthermore, the Court observed that in light of the more expansive notion of fiduciary and the remedies which ERISA does provide, the gap in remedies against nonfidu-ciaries may not be as great as was alleged. “All that ERISA has eliminated, on these assumptions, is the common law’s joint and several liability, for all direct and consequential damages suffered by the plan, on the part of persons who had no real power to control what the plan did.” Id. — U.S. at -, 113 S.Ct.. at 2072. While the majority did not find it necessary to decide whether claims against nonfidueiaries were preempted, Justice White stated in his dissent that while the majority chose not to reach the preemption question, “it is difficult to imagine how any common-law remedy for the harm alleged here — participation in a breach of fiduciary duty concerning an ERISA-gov-erned plan — could have survived enactment of ERISA’s ‘deliberately expansive’ preemption provision.” Id. — U.S. at -, 113 S.Ct. at 2074 n. 2 (White, J., dissenting) (citation omitted). For purposes of deciding the issue before us, we agree with this observation. All other courts of appeals that have considered the question agree that state causes of action asserted against nonfidueiaries are preempted by ERISA. They disagree only on the extent to which ERISA provides its own remedies against nonfidueiaries. See Consolidated Beef Industries, Inc. v. New York Life Insurance Company, 949 F.2d 960, 964 (8th Cir.1991) (whether defendant is a fiduciary does not affect the preemption analysis), cert. denied, — U.S. -, 112 S.Ct. 1670, 118 L.Ed.2d 390 (1992); compare Gibson v. Prudential Ins. Co., 915 F.2d 414, 417-18 (9th Cir.1990) (actions against nonfi-duciaries preempted, in part, because ERISA provides for equitable relief against nonfidu-ciaries under 29 U.S.C. §" }, { "docid": "1380773", "title": "", "text": "only apply when defendant functions as plan administrator), modified, 773 F.2d 1402, 1416-17 (2d Cir.1985), cert. dismissed, 474 U.S. 1113, 106 S.Ct. 1167, 89 L.Ed.2d 288 (1986). In the instant action, plaintiffs claim that defendant breached its fiduciary duty when it altered the health benefits that it provides its retirees. Because defendant’s fiduciary duty is not implicated by plaintiffs’ claim for vested retiree benefits, plaintiffs have failed to demonstrate a substantial likelihood of success on the merits of their claim. C. Equitable Estoppel In Count III of their complaint, plaintiffs are seeking reinstatement of benefits based upon principles of promissory estoppel. Defendant claims that any state law based es-toppel claim is preempted and that the circumstances of this case make estoppel under ERISA inapplicable. The court finds that plaintiffs have failed to demonstrate a substantial likelihood of success on the merits of their claim under estoppel. Any state law claim of promissory estoppel is preempted by 29 U.S.C. § 1144(a) of ERISA. See Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272, 1276 (6th Cir.1991), cert. dismissed, - U.S. -, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992); Davis v. Kentucky Finance Cos. Retirement Plan, 887 F.2d 689, 696 (6th Cir.1989), cert. denied, 495 U.S. 905, 110 S.Ct. 1924, 109 L.Ed.2d 288 (1990); see also Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139, 111 S.Ct. 478, 483, 112 L.Ed.2d 474 (1990); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45, 107 S.Ct. 1549, 1551-52, 95 L.Ed.2d 39 (1987). In addition, plaintiffs have not established a proper claim for equitable estoppel under ERISA. The Sixth Circuit has recognized that principles of equitable estoppel may be applicable in the context of the alteration or termination of retiree health benefits provided pursuant to an employee welfare plan. See Gill v. Moco Thermal Indus., Inc., 981 F.2d 858, 860 (6th Cir.1992) (no factual basis for application of estoppel in this instance); Armistead v. Vernitron Corp., 944 F.2d 1287, 1300 (6th Cir.1991) (estoppel principles applicable to welfare benefit plans, but not pension plans). In Armistead, the court found that equitable estoppel applied where thirty-nine employees chose" }, { "docid": "22473725", "title": "", "text": "question, “it is difficult to imagine how any common-law remedy for the harm alleged here — participation in a breach of fiduciary duty concerning an ERISA-gov-erned plan — could have survived enactment of ERISA’s ‘deliberately expansive’ preemption provision.” Id. — U.S. at -, 113 S.Ct. at 2074 n. 2 (White, J., dissenting) (citation omitted). For purposes of deciding the issue before us, we agree with this observation. All other courts of appeals that have considered the question agree that state causes of action asserted against nonfidueiaries are preempted by ERISA. They disagree only on the extent to which ERISA provides its own remedies against nonfidueiaries. See Consolidated Beef Industries, Inc. v. New York Life Insurance Company, 949 F.2d 960, 964 (8th Cir.1991) (whether defendant is a fiduciary does not affect the preemption analysis), cert. denied, — U.S. -, 112 S.Ct. 1670, 118 L.Ed.2d 390 (1992); compare Gibson v. Prudential Ins. Co., 915 F.2d 414, 417-18 (9th Cir.1990) (actions against nonfi-duciaries preempted, in part, because ERISA provides for equitable relief against nonfidu-ciaries under 29 U.S.C. § 1132(a)(3)), with Howard v. Parisian, Inc., 807 F.2d. 1560, 1564-65 (11th Cir.1987) (that Congress did. not provide for relief against nonfidueiaries does not alter the principle that state law actions against nonfidueiaries are preempted). We hold that the generalized contention that there should be some form of action available against nonfidueiaries is insufficient to overcome the specific language of the statute which provides for preemption of any claim that relates to an employee benefit plan. We do not now reach the question of the extent to which redress against a nonfi-duciary is available under ERISA itself, concluding only that ERISA preempts Custer’s state law claims in this case. C Custer contends that if the preemption clause of 29 U.S.C. § 1144(a) applies, so does the savings clause in § 1144(b)(2)(A), saving from preemption any law regulating insurance. Section 1144(b)(2)(A) provides that ERISA’s preemption clause shall not be construed “to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities.” Custer argues that her state law claim alleged in" }, { "docid": "11015628", "title": "", "text": "— it would defy common sense to allow ERISA to preempt a state law fraud claim.” Id. at 1407. The instant appeal is on all fours with Forbus. In this case, various US West representatives allegedly misrepresented tax consequences of lump sum distributions in order to induce plaintiffs to agree to resign under an early retirement benefits package, the 5 + 5 program. Plaintiffs do not claim fraud in the promised benefits, the scope of the plan, or the distribution of plan assets. Plaintiffs’ claim centers on US West’s alleged fraud concerning the tax consequences of lump sum distributions rather than fraud concerning the benefits plan itself. Moreover, the damages that plaintiffs may recover under the state law fraud claim will be determined with reference to the Internal Revenue Code, not the US West Pension Plan. In the present case — in which ERISA applies only peripherally, if at all — it would defy common sense to allow ERISA to preempt this straightforward state law fraud claim. We have held that state law claims challenging fraudulent statements about the nature of a benefits plan itself are preempted by ERISA. See, e.g., Olson v. General Dynamics Corp., 960 F.2d 1418, 1422-23 (9th Cir.1991), cert. denied, 504 U.S. 986, 112 S.Ct. 2968, 119 L.Ed.2d 588 (1992) (claim challenging oral misrepresentation regarding the level of benefits provided by a plan is preempted); Davidian v. Southern California Meat Cutters Union, 859 F.2d 134, 135 (9th Cir.1988) (claim against incorrect description of the insurance benefits of an ERISA plan is preempted). Other circuits agree. Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1218 (5th Cir.), cert. denied, — U.S. -, 113 S.Ct. 68, 121 L.Ed.2d 35 (1992) (claim based upon an employer’s misrepresentations regarding the terms of a plan itself is preempted); Consolidated Beef Industries, Inc. v. New York Life Ins. Co., 949 F.2d 960, 964 (8th Cir.1991), cert. denied, 503 U.S. 985, 112 S.Ct. 1670, 118 L.Ed.2d 390 (1992) (state law claims for misrepresentation in plan billings, interest rates, and annual statements are preempted); Degan v. Ford Motor Co., 869 F.2d 889, 894-95 (5th" }, { "docid": "5811384", "title": "", "text": "whether federal jurisdiction extends to mistaken ERISA payments, have held that ERISA preempts traditional state law claims including claims for restitution. In Kentucky Laborers Dist. Council Health and Welfare Fund v. Hope, 861 F.2d 1003, 1005 (6th Cir.1988), the Sixth Circuit specifically rejected the argument (advanced by Neurobe-havioral here) that preemption did not apply in cases in which interpretation of the plan was minimal. The court noted the impracticability of requiring courts to predict, based solely on the pleadings, the level of ERISA interpretation warranted in any particular ease. The court determined that Congress’ intent in creating a uniform source of employee benefits law demanded that the plaintiffs action for restitution of ERISA benefits be resolved in a federal forum. Id. at 1005. Even more persuasive is the Eleventh Circuit’s holding in Blue Cross & Blue Shield of Alabama v. Weitz, 913 F.2d 1544 (11th Cir. 1990), in which an ERISA fund sought restitution under section 502(a)(3) for a mistaken payment made to an unauthorized health care worker. The court held that “ ‘an equitable action to recover benefits erroneously paid ... falls within the clear grant of jurisdiction contained in 29 U.S.C. § 1132(a)(3).’ ” Id. at 1549 (citations omitted); see also First Nat’l Life Ins. Co. v. Sunshine-Jr. Food Stores, Inc., 960 F.2d 1546, 1549 (11th Cir. 1992) (holding that ERISA preempts state law claims against an employer alleging an improper payment of benefits), cert. denied, — U.S. -, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993); Kwatcher v. Massachusetts Serv. Employees Pension Fund, 879 F.2d 957, 966 (1st Cir.1989) (holding that ERISA preempted a state law restitution claim); Plucinski v. I.A.M. Nat’l Pension Fund, 875 F.2d 1052, 1057-58 (3d Cir.1989) (same); Whitworth Bros. Storage Co. v. Central States, Southeast & Southwest Areas Pension Fund, 794 F.2d 221 (6th Cir.) (same), cert. denied, 479 U.S. 1007, 107 S.Ct. 645, 93 L.Ed.2d 701 (1986). Finally, in Provident Life & Accident Ins., Co. v. Waller, 906 F.2d 985 (4th Cir.), cert. denied, 498 U.S. 982, 111 S.Ct. 512, 112 L.Ed.2d 524 (1990), the Fourth Circuit concluded that an insurer’s right to" }, { "docid": "22820705", "title": "", "text": "887 (1992). Thus, although no implied right of action exists under ERISA in favor of a participant against a non-fiduciary who knowingly participates in an ERISA-fiduciary’s breach of duty, the question remains whether a federal common law right of action should be recognized. This requires a consideration of whether there is a need for interstitial lawmaking and, if so, whether recognizing such a right of action would be consistent with ERISA’s scheme and further its purposes. See Jamail, Inc. v. Carpenters Dist. Council, 954 F.2d 299, 303-04 (5th Cir.1992); U.S. Steel Min. Co. v. District 17, United Mine Workers of America, 897 F.2d 149, 153 (4th Cir.1990). Section 514(a) of ERISA broadly preempts state law causes of action that “relate to” an ERISA-regulated plan. See, e.g., Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 98, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983). One factor pointing in favor of preemption is the “expectation[ ] that a federal common law of rights and obligations under ERISA-regulated plans would develop.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 1558, 95 L.Ed.2d 39 (1987). And, though Congress may preempt state law remedies without providing a corresponding remedy under federal law, see Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272, 1276 (6th Cir.1991) cert. dismissed, — U.S. -, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992); Phillips v. Amoco Oil Co., 799 F.2d 1464, 1470 (11th Cir.1986), cert. denied, 481 U.S. 1016, 107 S.Ct. 1893, 95 L.Ed.2d 500 (1987), some courts have concluded that because preemption, in the final analysis, turns on congressional purpose, if suits against non-fiduciaries may not lie under ERISA, Congress could not have aimed to preempt such actions. See Capital Mercury Shirt Corp. v. Employers Reinsurance Corp., 749 F.Supp. 926, 933-34 (W.D.Ark.1990); Munoz v. Prudential Ins. Co. of America, 633 F.Supp. 564, 571 (D.Colo.1986); see also Perry v. P*I*E Nationwide, Inc., 872 F.2d 157, 162 (6th Cir.1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1166, 107 L.Ed.2d 1068 (1990); Coleman v. General Elec. Co., 643 F.Supp. 1229, 1233-34 (E.D.Tenn.1986), aff'd mem., 822 F.2d 59 (6th" }, { "docid": "5811385", "title": "", "text": "action to recover benefits erroneously paid ... falls within the clear grant of jurisdiction contained in 29 U.S.C. § 1132(a)(3).’ ” Id. at 1549 (citations omitted); see also First Nat’l Life Ins. Co. v. Sunshine-Jr. Food Stores, Inc., 960 F.2d 1546, 1549 (11th Cir. 1992) (holding that ERISA preempts state law claims against an employer alleging an improper payment of benefits), cert. denied, — U.S. -, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993); Kwatcher v. Massachusetts Serv. Employees Pension Fund, 879 F.2d 957, 966 (1st Cir.1989) (holding that ERISA preempted a state law restitution claim); Plucinski v. I.A.M. Nat’l Pension Fund, 875 F.2d 1052, 1057-58 (3d Cir.1989) (same); Whitworth Bros. Storage Co. v. Central States, Southeast & Southwest Areas Pension Fund, 794 F.2d 221 (6th Cir.) (same), cert. denied, 479 U.S. 1007, 107 S.Ct. 645, 93 L.Ed.2d 701 (1986). Finally, in Provident Life & Accident Ins., Co. v. Waller, 906 F.2d 985 (4th Cir.), cert. denied, 498 U.S. 982, 111 S.Ct. 512, 112 L.Ed.2d 524 (1990), the Fourth Circuit concluded that an insurer’s right to recover mistaken payments .to a beneficiary was in fact essential to ERISA’s purposes, and that preemption was therefore appropriate. In support of its conclusion, the court pointed to section 403(c)(2)(A), which permits employers to recover mistaken payments from ERISA insurers. 29 U.S.C. § 1103(c)(2)(A). The court reasoned that embedded in this provision was an acknowledgement that plan funds should be administered equitably and that no party should unjustly profit. Id. at 993. Consequently, it was held appropriate to resolve the plaintiffs unjust enrichment claim in-federal court. The opinion in Waller calls into question the district court’s assumption that this case did not involve the “sound and -.equitable administration of an employee benefit plan.” As we have stated, “[f]orcing trustees of a plan to pay benefits which are not part of the written terms of the program disrupts the actuarial balance of the Plan and potentially jeopardizes the pension rights of others legitimately entitled to receive them.” Cummings v. Briggs & Stratton Retirement Plan, 797 F.2d 383, 389 (7th Cir.1986). Although “suits by fiduciaries against third" }, { "docid": "287515", "title": "", "text": "damages' under Group Administrators’ policy; it claims that Group Administrators’ independent promise to it (as opposed to its contractual obligations to Mr. Casey) establishes an independent ground for liability. Thus, as Rehab Institute is suing on a promise allegedly made directly to it, no allegation of an assignment is necessary. . ERISA § 514(a); 29 U.S.C. § ll'44(a). . Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138-39, 111 S.Ct. 478, 482-83, 112 L.Ed.2d 474 (1990) (citing FMC Cotp. v. Holliday, 498 U.S. 52, 56, 111 S.Ct. 403, 406, 112 L.Ed.2d 356 (1990)). . Ingersoll-Rand, 498 U.S. at 139, 111 S.Ct. at 482. . Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 19, 107 S.Ct. 2211, 2221, 96 L.Ed.2d 1 (1987). . Shaw v. Delta Air Lines, 463 U.S. 85, 96-7, 103 S.Ct. 2890, 2899-2900, 77 L.Ed.2d 490 (1983). . See Decatur Memorial Hospital v. Connecticut General Life Insurance Co., 990 F.2d 925, 927 (7th Cir.1993) (declining to address issue of whether state law claim by third party provider .was preempted by ERISA because plaintiff failed to plead cognizable claim under state law). This decision refutes defendant's assertion that the issue in this case is \"indisputably controll[ed]” by the Seventh Circuit’s decision in Pohl v. National Benefits Consultants, Inc., 956 F.2d 126 (7th Cir.1992), which held only that state law claims brought by ERISA participants and beneficiaries were preempted by ERISA. . Compare Hospice of Metro Denver, Inc. v. Group Health Insurance of Oklahoma, 944 F.2d 752 (10th Cir.1991) (ERISA does not preempt state law promissory estoppel claim by health care provider against ERISA plan insurer); Memorial Hosp. System v. Northbrook Life Insurance Co., 904 F.2d 236 (5th Cir.1990) (state insurance misrepresentation case not preempted) with Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272 (6th Cir.1991) (plaintiff’s state law claims preempted by ERISA). . 944 F.2d 1272 (6th Cir.1991), cert. dismissed - U.S. -, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992). . Cromwell, 944 F.2d at 1276 (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n. 21, 103 S.Ct. 2890, 2901 n. 21, 77 L.Ed.2d 490 (1983))." }, { "docid": "4187200", "title": "", "text": "destruction of evidence, misrepresentation, and bad faith. All of these except bad faith are also asserted against Cambrón. The claims for negligence, trover, and replevin are also asserted against Cowen, the Rossmans, Star, and the Diocese. These claims merely attach new, state-law labels to the ERISA claims for breach of fiduciary duty and recovery of benefits, for the apparent purpose of obtaining remedies that Congress has chosen not to make available under ERISA “It is not the label placed on a state law claim that determines whether it is preempted, but whether in essence such a claim is for the recovery of an ERISA plan benefit.” Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272, 1276 (6th Cir.1991), cert. dismissed, 505 U.S. 1233, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992). Stau-ter’s remedy against the Plan fiduciaries lies with ERISA, and substitute common law claims are preempted. See Tolton, 48 F.3d at 941-43 (holding that ERISA preempted beneficiary’s state-law claims against plan, including wrongful death, malpractice, insurance bad faith, and breach of contract); Kramer, 80 F.3d at 1083 (holding that ERISA preempted beneficiary’s state-law claims against ERISA fiduciary for fraud, negligence, securities violations, and breach of contract). ERISA may also provide limited relief against the nonfiduciary defendants who participated in a breach of fiduciary duty or otherwise violated the Act. See Hendershott, 840 F.2d at 342 (holding that a nonfiduciary can be liable under ERISA for aiding and assisting a breach of fiduciary duty); see also Mertens, 508 U.S. at 253-58, 113 S.Ct. 2063 (noting provisions of ERISA that impose obligations on nonfiduciaries and holding that nonfiduciaries are not liable for money damages under ERISA for participating in breach of fiduciary duty); Landwehr v. DuPree, 72 F.3d 726, 734 (9th Cir.1995) (holding that at least some ERISA claims against nonfiduciaries are available after Mertens). Regardless of the availability of an ERISA action against particular defendants, the relief provided by ERISA is the only relief available for the wrongs Stauter alleges. See Custer, 12 F.3d at 419 (holding that “state causes of action asserted [by beneficiaries] against nonfiduciaries are preempted by ERISA”) (citing" }, { "docid": "5759362", "title": "", "text": "Central Life Ins. Co., 874 F.2d 791 (11th Cir.1989) (claim of fraud in the inducement preempted by ERISA); Cromwell v. Equicor-Equitahle HCA Corp., 944 F.2d 1272 (6th Cir.1991) (state law claim of promissory estoppel to recover benefits from plan preempted by ERISA), cert. dismissed, — U.S. -, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992). In Perry v. P*I*E Nationwide, Inc., supra, the Sixth Circuit Court of Appeals held that a state law claim alleging fraud in the inducement and seeking rescission of the plan is not preempted by ERISA. The court noted that “we are disposed ... toward the reasoning ... that preemption should apply to a state law claim only if Congress has provided a remedy for the wrong or wrongs asserted.” Perry, 872 F.2d at 162. Other circuit courts of appeal have, however, disagreed that the lack of a federal remedy provides a basis upon which to ground a finding of non-preemption. See, e.g., Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d at 1276, citing Caterpillar Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); Olson v. General Dynamics Corporation, 951 F.2d 1123, 1128 (9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 2968, 119 L.Ed.2d 588 (1992); Scott v. Gulf Oil Corp., 754 F.2d 1499 (9th Cir.1985). This court is persuaded by the opinions of the Sixth and Eleventh Circuits, that state law causes of action alleging wrongful conduct prior to the adoption of an ERISA plan and seeking benefits under the plan (or damages as measured by the benefits which would otherwise have been provided by the plan) are preempted by ERISA. See Farlow v. Union Central Life Ins. Co., 874 F.2d 791 (11th Cir.1989); Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272 (6th Cir.1991). In Farlow, the plaintiffs brought suit against an insurance carrier and its agent, alleging fraudulent misrepresentation and claiming that the agent negligently failed to disclose that the ERISA plan did not provide maternity and pregnancy coverage. Plaintiffs also alleged that the agent fraudulently induced them to discontinue their current insurance coverage in favor of participation in the Plan." }, { "docid": "5759361", "title": "", "text": "which he complains occurred prior to the adoption of the plan, ERISA does not preempt his state law causes of action. Federal courts appear divided on the issue of whether ERISA preempts state law claims relating to allegedly wrongful conduct predating the adoption of an ERISA plan. Compare Perry v. P*I*E Nationwide, 872 F.2d 157 (6th Cir.1989) (common law claim of fraud in the inducement in obtaining participation in an employee welfare benefit plan and seeking rescission of plan, but not seeking benefits under plan, is not preempted by ERISA), cert. denied, 493 U.S. 1093, 110 S.Ct. 1166, 107 L.Ed.2d 1068 (1990); Perkins v. Time Insurance Co., 898 F.2d 470 (5th Cir.1990) (state law claim against insurance agent for fraudulent inducement is not preempted by ERISA, while similar claim against insurance company is preempted); Martin v. Pate, 749 F.Supp. 242 (S.D.Ala.1990) (claim of fraud in the inducement not preempted by ERISA), aff'd without op. 934 F.2d 1265 (11th Cir.1991); Isaac v. Life Investors Ins. Co., 749 F.Supp. 855 (E.D.Tenn. 1990) (same); with Farlow v. Union Central Life Ins. Co., 874 F.2d 791 (11th Cir.1989) (claim of fraud in the inducement preempted by ERISA); Cromwell v. Equicor-Equitahle HCA Corp., 944 F.2d 1272 (6th Cir.1991) (state law claim of promissory estoppel to recover benefits from plan preempted by ERISA), cert. dismissed, — U.S. -, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992). In Perry v. P*I*E Nationwide, Inc., supra, the Sixth Circuit Court of Appeals held that a state law claim alleging fraud in the inducement and seeking rescission of the plan is not preempted by ERISA. The court noted that “we are disposed ... toward the reasoning ... that preemption should apply to a state law claim only if Congress has provided a remedy for the wrong or wrongs asserted.” Perry, 872 F.2d at 162. Other circuit courts of appeal have, however, disagreed that the lack of a federal remedy provides a basis upon which to ground a finding of non-preemption. See, e.g., Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d at 1276, citing Caterpillar Inc. v. Williams, 482 U.S. 386, 107 S.Ct." }, { "docid": "10032661", "title": "", "text": "29 U.S.C. § 1106(a)(1)(D). Such transactions may be permissible, however, where they are made in order to provide reasonable compensation for services rendered. 29 U.S.C. § 1108(c)(2). ERISA authorizes a participant, beneficiary, or fiduciary to seek appropriate equitable relief to redress its injuries or enforce any provisions of ERISA or an employee benefit plan. 29 U.S.C. § 1132(a)(3). Fiduciaries who engage in prohibited transactions may be liable for damages, restitution, and “such other equitable or remedial relief as the court may deem appropriate,” including removal of the fiduciary. Mertens, 508 U.S. at 252, 113 S.Ct. 2063 (citing 29 U.S.C. § 1109(a)). D. Preemption of State Law Claims ERISA preempts common law breach of fiduciary duty claims, Smith v. Provident Bank, 170 F.3d 609, 613 (6th Cir.1999), including a beneficiary’s state law breach of contract claims against a fiduciary. See Kramer v. Smith Barney, 80 F.3d 1080, 1083 (5th Cir.1996); Tolton v. American Biodyne, Inc., 48 F.3d 937, 941-43 (6th Cir.1995). Claims which merely attach new, state law labels to ERISA claims for breach of fiduciary duty are, of course, preempted as well. Pro indent Bank, 170 F.3d at 613. “It is not the label placed on a state law claim that determines whether it is preempted, but whether in essence such a claim is for the recovery of an ERISA plan benefit.” Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272, 1276 (6th Cir.1991), cert. dismissed, 505 U.S. 1233, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992). ERISA also preempts a beneficiary’s claims against non-fiduciaries. See Provident Bank, 170 F.3d at 617 (citing Pedre Co. Inc. v. Robins, 901 F.Supp. 660, 666 (S.D.N.Y.1995)). It does not, however, preempt state law claims by plans (or their sponsors or trustees) against non-fiduciaries. Id. Thus, plans may assert state-law claims against non-ERISA entities. Id. III. Analysis A. Breach of Fiduciary Duty Claim Count I of Plaintiffs’ Complaint charges Defendant with breach of fiduciary duty under 29 U.S.C. §§ 1104 and 1109. The Service Agreement (“the Agreement”) reached by the parties serves as the starting point for the Court’s analysis of fiduciary status. The Agreement provides" }, { "docid": "3049475", "title": "", "text": "§ 502 defines the specific circumstances upon which one may be granted legal or equitable relief. Id. at 822. , Some courts, while recognizing the absence of an express or implied right of action under ERISA, have allowed for the creation of a federal common law in certain instances. A number of the courts, however, follow the restrictive interpretation of § 502(a) as set forth in Pilot Life, supra. See e.g., First Nat’l Life Ins. v. Sunshine-Jr. Food Stores, 960 F.2d 1546, 1550 (11th Cir.1992) (argument that ERISA provides inadequate remedy is insufficient reason to overcome language of statute); Lee v. E.I. DuPont de Nemours & Co., 894 F.2d 755, 757 (5th Cir.1990) (ERISA preempts state law claims of fraud and misrepresentation without regard to whether ERISA provided any remedy for claimed wrong); Lister v. Stark, 890 F.2d 941, 946 (7th Cir.1989), cert. denied, - U.S.-, 111 S.Ct. 579, 112 L.Ed.2d 584, 112 L.Ed.2d 584 (1990) (“[w]hile our holding will leave [plaintiff] without a remedy, the availability of a federal remedy is not a prerequisite for federal preemption”); Degan v. Ford Motor Co., 869 F.2d 889, 895 (5th Cir.1989).(preempting plaintiffs state law claims despite recognition that employer’s misrepresentation was a “betrayal without a remedy”). But see Provident Life & Accident Ins. Co. v. Waller, 906 F.2d 985 (4th Cir.), cert. denied, - U.S. -, 111 S.Ct. 512, 112 L.Ed.2d 524 (1990) (court created féderal common law rule of unjust enrichment to recover monies advanced to plan participant); Whitworth Bros. Storage Co. v. Central States, Southeast & Southwest Areas Pension Fund, 794 F.2d 221 (6th Cir.), cert. denied, 479 U.S. 1007, 107 S.Ct. 645, 93 L.Ed.2d 701 (1986) (finding no cause of action under ERISA, court provided federal common law to find cause of action for employer to recover payments mistakenly made to pension plan). As further support for the creation of a federal common law, Sanson contends that “Congress specifically contemplated that federal courts, in the interests of justice, would engage in interstitial lawmaking in ERISA cases in much the same way as the courts fashioned a federal common law" } ]

[ { "docid": "23173767", "title": "", "text": "because the record did not contain contradictory evidence on this point, we cannot say that this “new evidence” is such that a new hearing on defendant’s motion to dismiss “would probably produce a new result.” Walus, 616 F.2d at 288. McKnight’s real complaint, it appears, is that the district court erroneously decided that charges are deemed “filed” with the EEOC, within the meaning of 42 U.S.C. § 2000e-5(e), when the complainant signs a formal complaint; plaintiff contends that, as a matter of law, a charge is deemed “filed” when the EEOC initially receives notice, whether formal or informal, of discrimination allegations. Plaintiff may not, however, use Rule 60(b) to correct alleged errors of law by the district court which may have been raised by filing a timely appeal from the court’s dismissal of plaintiff’s complaint. See infra, at 338. We cannot say that the district court abused its discretion in refusing to reopen the case on the basis of plaintiff’s “new evidence.” IV. Finally, amicus curiae, EEOC, urges us to reverse because, it argues, the district court erroneously denied McKnight’s repeated requests for appointed counsel. The EEOC contends that the district court did not comply with the guidelines we set forth in Jones v. WFYR Radio/RKO General, 626 F.2d 576 (7th Cir.1980) (per curiam), overruled on other grounds, Randle v. Victor Welding Supply Co., 664 F.2d 1064 (7th Cir.1981) (per curiam), for appointment of counsel in Title VII actions. It is clear from the record that the district court, although aware of Jones, did not use the Jones guidelines in denying plaintiff’s requests for appointment of counsel; instead, the court relied on the factors we have identified as appropriate under 28 U.S.C. § 1915 in cases involving prisoners, particularly the pro se plaintiff’s competency to represent himself. See Caruth v. Pinkney, 683 F.2d 1044 (7th Cir.1982); Maclin v. Freake, 650 F.2d 885 (7th Cir.1981). See also Brown-Bey v. United States, 720 F.2d 467, 471 (7th Cir.1983). Before we consider, however, whether the district court should have granted 60(b) relief because it previously denied appointment of counsel based upon the wrong" } ]

[ { "docid": "8889029", "title": "", "text": "in the decision not to preserve the video. Braeey lost at trial. He now appeals both the denial of his motion to recruit counsel and the denial of his motion for spoliation sanctions. II. Discussion A. The District Court Did Not Abuse Its Discretion in Denying Bracey’s Request for Counsel District courts may ask an attorney to represent a litigant unable to pay for his own lawyer. § 1915(e)(1). To qualify, the indigent litigant must make reasonable efforts at finding counsel himself. Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir.2007) (en banc). If the litigant comes up short, then the district court must decide whether “given the difficulty of the case,” the plaintiff is “competent to try it himself.” Id. (citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993)). Importantly, the district court must consider both halves of this equation — the difficulty of the case and the competence of the litigant. Id. at 660. When reviewing the district court’s determination on complexity and competency, we consider the reasonableness of the district court’s conclusion in light of the evidence as it stood at the time of the district court’s decision. Id. at 659. We review denials of § 1915(e) motions for an abuse of discretion. Id. at 658. Thus, we affirm unless the district court has applied the wrong legal standard (or made other errors of law), made clearly erroneous factual findings, or rendered a clearly arbitrary decision without any support in the record. Id. Even then, an appellate court can only reverse when the absence of counsel prejudiced the litigant, which requires “a reasonable likelihood that the presence of counsel would have made a difference in the outcome of the litigation.” Id. at 659 (emphasis in original). The government does not challenge the district court’s conclusion that Bracey made reasonable attempts to obtain counsel himself, and Bracey does not challenge the district court’s findings regarding the quality of his pro se representation. Instead, Bracey emphasizes “the difficulties [he] faced as a prisoner attempting to gather evidence.” Complexities anticipated (or arising) during discovery can justify a court’s decision" }, { "docid": "22145358", "title": "", "text": "we discarded Maclin’s multifactor test in favor of the following more straightforward inquiry: “given the difficulty of the case, did the plaintiff appear to be competent to try it himself and, if not, would the presence of counsel have made a difference in the outcome?” 990 F.2d 319, 322 (7th Cir.1993). Using this inquiry as a guide, we conclude that the district court abused its discretion by denying Greeno’s request for counsel. As an initial matter, we respectfully disagree with the district court’s assessment of Greeno’s case as “factually simple and legally straightforward.” As Greeno points out, his medical records, letters, health services requests, and inmate complaints span over two years. His case is also legally more complicated than a typical failure-to-treat claim because it requires an assessment of the adequacy of the treatment that Greeno did receive, a question that will likely require expert testimony. See Swofford v. Mandrell, 969 F.2d 547, 552 (7th Cir.1992) (pointing out that “difficult and subtle question” of state of mind required for deliberate indifference is too complex for pro se plaintiff to understand and present to jury). We also agree with Greeno that his inability to serve seven of the defendants with process despite repeated attempts is illustrative of his inability to try the case by himself. Finally, as Greeno’s success on appeal illustrates, the assistance of counsel would likely have made a difference in Greeno’s ability to withstand summary judgment. In sum, when considering Greeno’s motion using the inquiry laid out in Farmer, we conclude that the court abused its discretion by denying Greeno’s motion for appointed counsel. III. For the foregoing reasons, we reverse the district court’s denial of Greeno’s motion for the appointment of counsel. We vacate the district court’s grant of summary judgment in favor of George Daley, Sharon Zunker, and Judith Nordahl, and affirm the judgment in favor of Charles Miller. We also affirm the district court’s dismissal of Greeno’s claim against Nerissa Avestruz, William Ridgely, Lyn Jenkins, and Michael Sullivan, but on grounds other than those stated by the district court. Finally, we vacate the dismissal of" }, { "docid": "22916447", "title": "", "text": "a claimant has received inadequate notice; [that] a motion for appointment of counsel is pending and equity would justify tolling the statutory period until the motion is acted upon; [that] the court has led the plaintiff to believe that she had done everything required of her.” Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 1725-26, 80 L.Ed.2d 196 (1984) (citations omitted). Considerations weighing in favor of equitable tolling must be balanced against the possibility of prejudice to the defendants occasioned by the delay. Application of the doctrine requires that the plaintiff demonstrate “reasonable diligence.” Singletary, 9 F.3d at 1243. The present case may well be an appropriate instance for the equitable tolling of the statute of limitations with respect to the individual defendants. Donald, unrepresented and incarcerated, was unable to identify the officers directly involved in the incidents leading up to his heart attack without the aid of the tools of discovery or a court-ordered disclosure of their identities. Thus he was excused from the usual rule that “a tort victim who does not know who the tortfeasor is cannot sue.” Billman v. Indiana Department of Corrections, 56 F.3d at 789. The district court’s delay in considering, and eventual denial of, his motion for appointment of counsel, combined with the lack of any notice to Donald that he had sued the wrong defendants, helped to ensure that his ignorance of the identities of the unknown officials would continue. On remand, the district court should determine whether the balance of equities favors tolling the statute of limitations to allow Donald to bring this suit against the individual defendants, once they are identified. IV. Conclusion Because the district court abused its discretion in denying Donald’s Rule 60(b) motion for relief from the judgment without properly considering whether amendment of the complaint was allowable -under Rule 15(c) or, alternatively, whether the statute of limitations should be subject to equitable tolling, we reverse and remand for further proceedings. On remand, the district court should carefully consider appointing counsel to assist Donald in identifying the proper defendants and dealing with" }, { "docid": "12915823", "title": "", "text": "He did not have a fair opportunity to prosecute his case. As in Donald v. Cook County Sheriff’s Dept., 95 F.3d 548, 554 (1996), “the plaintiffs difficulties are traceable in considerable part to the way the matter was handled by the district court.” The district judge, although purporting to apply the standard for deciding whether to recruit pro bono counsel set forth in Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en banc), overlooked our emphasis in that case on the need to consider whether the particular plaintiff is competent to litigate his own claims, as by being able to “prepar[e] and respond[ ] to motions and other court filings” himself. Id. at 655. In combination, Davis’s severe intellectual handicaps, his apparently diligent efforts to pursue his case despite those handicaps, his potentially meritorious claim, and the irregularities of the district court’s handling of the case, amount to “extraordinary circumstances” justifying relief under Rule 60(b)(6) of the Federal Rules of Civil Procedure from the final judgment in this case. See Ramirez v. United States, 799 F.3d 845, 851 (7th Cir. 2015); Donald v. Cook County Sheriff’s Dept., supra, 95 F.3d at 554. The denial of Davis’s motion for relief from final judgment is therefore reversed and the case remanded for further proceedings consistent with this opinion. Reversed and Remanded. KANNE, Circuit Judge, concurring. I join in the majority’s reversal of the district court’s decision denying Davis’s motion for relief from final judgment and the majority’s remand for further proceedings. I write separately to briefly discuss certain factors. When reviewing a district court’s denial of an indigent prisoner plaintiffs motion to recruit counsel for him, we make three inquiries: “(1) has the indigent plaintiff made reasonable efforts to retain counsel or been effectively precluded from making such efforts before requesting appointment; (2) given the difficulty of the case, did the plaintiff appear to be competent to try it himself; and (3) if not, would the presence of counsel have made a difference in the outcome.” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc) (internal citations and" }, { "docid": "22157846", "title": "", "text": "considering undertaking such representation. It is also suggested frequently that there simply are not attorneys willing to take a prisoner case. The presence of counsel in this case on appeal belies that suggestion — as does the long list of counsel who regularly take such cases. If counsel are available and willing to perform this public service, why are they not called upon more frequently? Is there a fear that counsel’s presence will unduly complicate the case? Or is there an apprehension that counsel will make the case more burdensome on the state officials? Certainly such considerations, if they lurk beneath the surface of a decision not to appoint counsel, are entirely inappropriate and underestimate both the skill and dedication of the bar and the capacity of the district court to keep a case on track. C. Now that we have assessed the burden shouldered by Mr. Johnson and the conventional wisdom that surrounded his request for counsel, we can turn to an analysis of the issue before the court today. Rulings on motions to appoint counsel are reviewed for “abuse of discretion.” See, e.g., McNeil v. Lowney, 831 F.2d 1368, 1371 (7th Cir.1987). The term “abuse of discretion” is rhetorically potent and some of the formulations that are employed to give it meaning are equally sharp. To say that we should reverse under the abuse-of-discretion standard only when no rational person could agree with the district court’s ruling is poetic — and misleading. To say that reversal is warranted when the district court selected a course of proceeding that, under the circumstances one would not have expected a jurist to choose is perhaps better, although still imperfect. Fortunately, we have refined the test in the context to appointment of counsel cases and ask whether “[G]iven the difficulty of the case, did the plaintiff appear to be competent to try it himself and, if not, would the presence of counsel have made a difference in the outcome?” Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993). In other words, we shall reverse a district court’s refusal to appoint counsel “if," }, { "docid": "22916448", "title": "", "text": "victim who does not know who the tortfeasor is cannot sue.” Billman v. Indiana Department of Corrections, 56 F.3d at 789. The district court’s delay in considering, and eventual denial of, his motion for appointment of counsel, combined with the lack of any notice to Donald that he had sued the wrong defendants, helped to ensure that his ignorance of the identities of the unknown officials would continue. On remand, the district court should determine whether the balance of equities favors tolling the statute of limitations to allow Donald to bring this suit against the individual defendants, once they are identified. IV. Conclusion Because the district court abused its discretion in denying Donald’s Rule 60(b) motion for relief from the judgment without properly considering whether amendment of the complaint was allowable -under Rule 15(c) or, alternatively, whether the statute of limitations should be subject to equitable tolling, we reverse and remand for further proceedings. On remand, the district court should carefully consider appointing counsel to assist Donald in identifying the proper defendants and dealing with the complex issues of relation back and equitable tolling, as well as other issues that may arise. REVERSED AND REMANDED. . Donald’s argument to this court focused on his contention that the district court abused its discretion in failing to appoint counsel to assist him with his complaint. \"Lack of counsel may sometimes be a‘factor warranting relief under Rule 60(b).” McKnight v. United States Steel Corp., 726 F.2d 333, 338 (7th Cir.1984). In deciding whether the district court abused its discretion in failing to appoint counsel, \"the necessary inquiry is ...: given the difficulty of the case, did the plaintiff appear to be competent to try it himself and, if not, would the presence of counsel have made a difference in the outcome?” Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993). While there is a good argument that Donald's inability to investigate (coupled with a misapprehension of the legal standard) met the Farmer standard, we recognize that there may have been other measures which the district court could have taken, short of the appointment" }, { "docid": "22157847", "title": "", "text": "appoint counsel are reviewed for “abuse of discretion.” See, e.g., McNeil v. Lowney, 831 F.2d 1368, 1371 (7th Cir.1987). The term “abuse of discretion” is rhetorically potent and some of the formulations that are employed to give it meaning are equally sharp. To say that we should reverse under the abuse-of-discretion standard only when no rational person could agree with the district court’s ruling is poetic — and misleading. To say that reversal is warranted when the district court selected a course of proceeding that, under the circumstances one would not have expected a jurist to choose is perhaps better, although still imperfect. Fortunately, we have refined the test in the context to appointment of counsel cases and ask whether “[G]iven the difficulty of the case, did the plaintiff appear to be competent to try it himself and, if not, would the presence of counsel have made a difference in the outcome?” Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993). In other words, we shall reverse a district court’s refusal to appoint counsel “if, given the difficulty of the case and the litigant’s ability, [he] could not obtain justice without an attorney, [he] could not obtain a lawyer on [his] own, and [he] would have had a reasonable chance of winning with a lawyer at [his] side.” Forbes v. Edgar, 112 F.3d 262, 264 (7th Cir.1997). As this standard makes clear, “we evaluate the reasonableness of the district court’s decision [whether to request counsel] as of the time it was made .... ” Hudson v. McHugh, 148 F.3d 859, 862 n. 1 (7th Cir. 1998). In my view, the district court selected a course of proceeding that was clearly inappropriate. It did not take into consideration all the factors that it should have and it gave inappropriate weight to the factors that it did consider. In short, it accepted the conventional wisdom about prisoner medical suits and the conventional wisdom about the appointment of counsel in a case in which it should have “thought out of the box” and declined to accept that conventional wisdom. Mr. Johnson claims that" }, { "docid": "8005109", "title": "", "text": "This court reviews a district court’s denial of a motion for appointment of counsel for an abuse of discretion. Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir.1995). Although civil litigants do not have a constitutional or statutory right to counsel, the district court has the discretion pursuant to 28 U.S.C. § 1915(e) to request attorneys to represent indigents in appropriate cases. Id. “In deciding whether .the district court abused its discretion in failing to appoint counsel, ‘the necessary inquiry is ...: given the difficulty of the case, did the plaintiff appear to be competent to try it himself and, if not, would the presence of counsel have made a difference in the outcome?’ ” Donald v. Cook County Sheriff’s Dept., 95 F.3d 548, 554 n. 1 (7th Cir.1996) (quoting Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993)). Although a good lawyer may have done better than Luttrell, that is not the test, for if it was “district judges would be required to request counsel for every indigent litigant.” Farmer, 990 F.2d at 323. Even though Luttrell did not appear competent to try this case himself, he had the assistance of “jailhouse lawyers.” In light of the discretion afforded to the district court and the fact that the presence of counsel would not have altered the outcome, we hold that the court did not abuse its discretion. Affirmed." }, { "docid": "22157797", "title": "", "text": "whether this court would have appointed counsel if it were in the district court’s position. See Zarnes v. Rhodes, 64 F.3d 285, 289 (7th Cir.1995). Even if the reviewing court may have preferred to appoint counsel, that is not its role. Otherwise, such disagreement would always compel appointment. Rather, “overriding]” a district court’s denial of counsel is reserved for only “that extreme case in which it should have been plain beyond doubt” that counsel was necessary. Farmer v. Haas, 990 F.2d 319, 323 (7th Cir.1993). Also, the test is not whether “a good lawyer may have done better than [the plaintiff].” Luttrell, 129 F.3d at 936. Because if that were the test, “district judges would be required to request counsel for every indigent litigant.” Id. (quoting Farmer, 990 F.2d at 323). Section 1915(e)(1) leaves significant discretion with the district court. To determine if a district court abused its discretion in denying counsel, we have formulated a two-step inquiry. We first ask: “[GJiven the difficulty of the case, did the plaintiff appear to be competent to try it himself[?]” Greeno, 414 F.3d at 658 (quoting Farmer, 990 F.2d at 322). If so, our inquiry ends right there. If not, we further ask: “[W]ould the presence of counsel have made a difference in the outcome?” Greeno, 414 F.3d at 658 (quoting Farmer, 990 F.2d at 322). Reversal is therefore warranted only when the district court’s “denial amounts to a violation of due process.” Zarnes, 64 F.3d at 288; see also Gil v. Reed, 381 F.3d 649, 657 (7th Cir.2004). In other words, a district court will be held to have abused its discretion under § 1915(e)(1) only if the denial of counsel made “it impossible for [the plaintiff] to obtain any sort of justice.” Farmer, 990 F.2d at 323 (emphasis added). Johnson has not met this “exacting standard.” Id. This case was not overly difficult. Johnson had to show that he had a serious medical need and that the defendants consciously disregarded that need so as to impose cruel and unusual punishment. See Farmer v. Brennan, 511 U.S. 825, 837-38, 114 S.Ct." }, { "docid": "22916450", "title": "", "text": "of counsel, to assist Donald in identifying and naming the proper defendants in a timely fashion. Billman v. Indiana Dept. of Corrections, 56 F.3d 785, 790 (7th Cir.1995). Thus, while appointment of counsel may have been an effective way for the district court to fulfill its responsibilities, we focus our discussion on the failure of the court to take any measures to aid this pro se prisoner. . See, e.g., Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir.1981) (noting \"well-established requirement that pro se pleadings be held to less stringent standards than those prepared by counsel\"); Munz v. Parr, 758 F.2d 1254, 1258 (8th Cir. 1985) (pro se complaint not frivolous unless it is “beyond doubt that petitioner can prove no set of facts in support of his claim which would entitle him to relief''); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987) (\"pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment”); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972) (less stringent standards for pro se complaint). . See, e.g., Billman v. Indiana Dept. of Corrections, 56 F.3d 785, 788-90 (7th Cir.1995) (duty of district court to assist prisoner plaintiff in making the investigation necessary to identify proper defendants); Chavis v. Rowe, 643 F.2d 1281, 1290 n. 9 (7th Cir.1981) (pro se plaintiff's failure to name a particular defendant in con-nectíon with one of his claims no bar; current defendant could readily determine who would bear responsibility); Berndt v. State of Tenn., 796 F.2d 879, 881 (6th Cir.1986) (remanding for amendment when \"the complaint, in substance, clearly indicated that the [unnamed] staff and authorities [rather than the official body named as defendant] are the real parties-defendants” in spite of plaintiff’s failure to request leave to amend); Duncan v. Duckworth, 644 F.2d 653, 656 (7th Cir.1981) (\"understandable that a pro se litigant would name only the administrative officer, whose identity he knows, as a defendant in his civil rights lawsuit”; \"district" }, { "docid": "12915824", "title": "", "text": "799 F.3d 845, 851 (7th Cir. 2015); Donald v. Cook County Sheriff’s Dept., supra, 95 F.3d at 554. The denial of Davis’s motion for relief from final judgment is therefore reversed and the case remanded for further proceedings consistent with this opinion. Reversed and Remanded. KANNE, Circuit Judge, concurring. I join in the majority’s reversal of the district court’s decision denying Davis’s motion for relief from final judgment and the majority’s remand for further proceedings. I write separately to briefly discuss certain factors. When reviewing a district court’s denial of an indigent prisoner plaintiffs motion to recruit counsel for him, we make three inquiries: “(1) has the indigent plaintiff made reasonable efforts to retain counsel or been effectively precluded from making such efforts before requesting appointment; (2) given the difficulty of the case, did the plaintiff appear to be competent to try it himself; and (3) if not, would the presence of counsel have made a difference in the outcome.” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc) (internal citations and quotations marks omitted). Here, the district court erred at the mandatory first step by not crediting Davis for following existing precedent in attempting to obtain a lawyer to represent him. See Jackson v. Cty. of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992). In fact, the defendant does not contest that Davis had contacted several lawyers seeking representation in this litigation. Moreover, the long extended give-and-take between the district judge and the parties failed to get to the heart of the matter: whether the district court should have tried to appoint counsel for Davis. The court could have addressed this issue by appointing a magistrate judge to conduct a hearing at the prison. The magistrate judge could have considered both Davis’s efforts to obtain counsel and the difficulty Davis experienced in dealing with the case. In addition, but less satisfactorily, the district judge could have held a hearing by telephone to achieve the same end. With counsel, Davis likely would not have missed the deadlines for written discovery. Thus, the outcome of the case in" }, { "docid": "23168342", "title": "", "text": "crucial facts; (3) whether trained counsel will better expose the truth; (4) the plaintiffs ability to present the case; and (5) the complexity of the relevant legal issues. More recently, however, we stated that “the necessary inquiry is simpler than Maclin’s multi-factorial approach implies; given the difficulty of the case, [does] the plaintiff appear to be competent to try it himself and, if not, would the presence of counsel [make] a difference in the outcome?” Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.), cert. denied, — U.S. —, 114 S.Ct. 438, 126 L.Ed.2d 372 (1993). Thus, courts now have an alternative, easier method for deciding these motions, one that we now employ. Zarnes’s claims were not so complex as undisputedly to require counsel. In Swofford v. Mandrell, 969 F.2d 547, 552 (7th Cir.1992), the plaintiff alleged a due process violation for placing him in a cell with ten other inmates who subsequently beat him. There, we reversed the court’s decision to deny counsel because of the “difficult and subtle question of the state of mind required [to prove] a Fourteenth Amendment violation.” Id. at 552. We did not, however, dictate the automatic appointment of counsel whenever a litigant alleges a violation of due process. While Swofford involved a claim similar to Zarnes’s allegations, here it appeared from her pleadings that Zarnes understood the elements of her claims and the legal authority supporting them. See Barnhill v. Doiron, 958 F.2d 200, 203 (7th Cir.1992). Zarnes also recognized relevant facts and accordingly attached letters from other inmates attesting to Crowder’s mental illness and sought a copy of the jail’s policies and procedures. These efforts demonstrate Zarnes’s ability to investigate the underlying facts despite her incarceration in California, as well as her apparent ability to present her claims. Zarnes’s counsel on appeal maintains that Zarnes has a problem understanding English, but the court also spoke with Zarnes by telephone, and we credit its view of her proficiency over that of her counsel. Were we to have had the responsibility for original decision on Zarnes’s motion, we may have chosen to appoint counsel" }, { "docid": "22916421", "title": "", "text": "reconsider.” R.36. Donald filed a Notice of Appeal on November 4, 1994, regarding the October 18, 1994, order. We construe Donald’s October 7 motion as a Rule 60(b) motion for relief from the judgment. It is this motion which is the focus of our appellate review. Rule 60(b) allows relief from judgment in several specified circumstances. Donald relies on two possible grounds for relief. First, he claims that his failure to name the individual defendants in his original suit was a consequence of “mistake, inadvertence, surprise, or excusable neglect.” Fed.R.Civ. P. 60(b)(1). Alternatively, he argues that he may be granted relief under Rule 60(b)(6), which allows the court to grant relief for “any other reason justifying relief from the operation of the judgment.” Fed.R.Civ.P. 60(b)(6). Donald’s underlying argument is that he should have been allowed to amend his complaint to add the individual defendants and that the arguable expiration of the statute of limitations does not bar their inclusion. He argues that his failure to name these defendants as an initial matter should be excused because, as an incarcerated litigant who was denied the appointment of counsel, he was unable to determine the identities of the appropriate individual defendants and, indeed, was unaware that it was necessary to name these defendants in the caption of the complaint. Unfortunately, Donald did not make these arguments on direct appeal of the dismissal of his civil rights suit or in a timely Rule 59(e) motion to alter or amend the judgment. A Rule 60(b) motion cannot substitute for an appeal and we will ordinarily not reverse a denial of a Ride 60(b) motion unless there is a “showing of extraordinary circumstances that create a substantial danger that the underlying judgment was unjust.” Del Carmen v. Emerson Elec. Co., Commercial Cam Div., 908 F.2d 158, 161 (7th Cir.1990). We review a district court’s denial of a Rule 60(b) motion for abuse of discretion only. Of course, in determining whether the district court abused its discretion, we are usually required to make a limited review of the merits of the underlying issues in the ease." }, { "docid": "22916449", "title": "", "text": "the complex issues of relation back and equitable tolling, as well as other issues that may arise. REVERSED AND REMANDED. . Donald’s argument to this court focused on his contention that the district court abused its discretion in failing to appoint counsel to assist him with his complaint. \"Lack of counsel may sometimes be a‘factor warranting relief under Rule 60(b).” McKnight v. United States Steel Corp., 726 F.2d 333, 338 (7th Cir.1984). In deciding whether the district court abused its discretion in failing to appoint counsel, \"the necessary inquiry is ...: given the difficulty of the case, did the plaintiff appear to be competent to try it himself and, if not, would the presence of counsel have made a difference in the outcome?” Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993). While there is a good argument that Donald's inability to investigate (coupled with a misapprehension of the legal standard) met the Farmer standard, we recognize that there may have been other measures which the district court could have taken, short of the appointment of counsel, to assist Donald in identifying and naming the proper defendants in a timely fashion. Billman v. Indiana Dept. of Corrections, 56 F.3d 785, 790 (7th Cir.1995). Thus, while appointment of counsel may have been an effective way for the district court to fulfill its responsibilities, we focus our discussion on the failure of the court to take any measures to aid this pro se prisoner. . See, e.g., Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir.1981) (noting \"well-established requirement that pro se pleadings be held to less stringent standards than those prepared by counsel\"); Munz v. Parr, 758 F.2d 1254, 1258 (8th Cir. 1985) (pro se complaint not frivolous unless it is “beyond doubt that petitioner can prove no set of facts in support of his claim which would entitle him to relief''); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987) (\"pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment”);" }, { "docid": "23225001", "title": "", "text": "and the district court repeatedly denied his requests because, in the court’s view, Jackson’s legal claims against the defendants were not sufficiently complex and Jackson was capable of developing and litigating the claims himself. The court explained that “the presence of counsel would not make a difference in the outcome.” We review a district court’s decision not to assist a litigant in obtaining counsel for an abuse of discretion. See Pruitt v. Mote, 503 F.3d 647, 658 (7th Cir.2007) (en banc). Jackson had no constitutional or statutory right to counsel in his civil case against the government and its employees. See Johnson v. Doughty, 433 F.3d 1001, 1019 (7th Cir.2006). The decision of whether to recruit pro bono counsel for Jackson — or, as it is often called, to “appoint counsel”- — -rested within the sound discretion of the district court. See Pruitt, 503 F.3d at 653-54; Johnson, 433 F.3d at 1019. As part of its exercise in discretion, the district court was required to consider both “the difficulty of the plaintiffs claims and the plaintiffs competence to litigate those claims himself.” Pruitt, 503 F.3d at 655. In determining whether the district court abused its discretion, we do not engage in an independent analysis of the plaintiffs claims and competency in order to decide for ourselves whether we think the plaintiff needed counsel. Id. at 658-59. Instead, we determine whether the district court applied the correct legal standard, and whether the court’s ultimate conclusion was reasonable given the information available to the court at the time the decision was made. Id. “ ‘We ask not whether [the judge] was right, but whether he was reasonable.’ ” Id. at 659 (quoting Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993)). The district court applied the proper legal standard when assessing Jackson’s requests. In response to Jackson’s first request, the court correctly explained that a request for appointment of counsel will be considered by the court only after the plaintiff has made reasonable efforts to obtain counsel from the private bar. See id. at 654; Gil v. Reed, 381 F.3d 649, 658" }, { "docid": "22916422", "title": "", "text": "because, as an incarcerated litigant who was denied the appointment of counsel, he was unable to determine the identities of the appropriate individual defendants and, indeed, was unaware that it was necessary to name these defendants in the caption of the complaint. Unfortunately, Donald did not make these arguments on direct appeal of the dismissal of his civil rights suit or in a timely Rule 59(e) motion to alter or amend the judgment. A Rule 60(b) motion cannot substitute for an appeal and we will ordinarily not reverse a denial of a Ride 60(b) motion unless there is a “showing of extraordinary circumstances that create a substantial danger that the underlying judgment was unjust.” Del Carmen v. Emerson Elec. Co., Commercial Cam Div., 908 F.2d 158, 161 (7th Cir.1990). We review a district court’s denial of a Rule 60(b) motion for abuse of discretion only. Of course, in determining whether the district court abused its discretion, we are usually required to make a limited review of the merits of the underlying issues in the ease. Id. In this ease the underlying question is whether the district court abused its discretion by refusing to allow Donald to amend his complaint to add the individual defendants. II. Extraordinary Circumstances The facts of the case, as alleged in the complaint, suggest that Donald may have suffered a serious deprivation of his constitutional rights. We also believe that there are extraordinary circumstances in the case which have created a substantial danger that the underlying judgment is unjust. Ordinarily, of course, a plaintiff must bear the consequences of his or her procedural lapses and mistakes in pleading, even if the result is the denial of relief which is otherwise well-deserved. In this case, however, the plaintiffs difficulties are traceable in considerable part to the way the matter was handled by the district court. First, the district court failed to accord Donald’s complaint the liberal construction appropriate for facially meritorious pro se complaints and to provide ample opportunity for Donald to amend the complaint to render it legally viable. In a related vein, the court made" }, { "docid": "22145357", "title": "", "text": "we review for an abuse of discretion, Weiss v. Cooley, 230 F.3d 1027, 1034 (7th Cir.2000). Greeno first moved for the appointment of counsel in June 2000, before the court dismissed his case under § 1915A. The district court did not rule on Greeno’s motion until August 2001, shortly after we reversed and remanded Greeno’s case. In analyzing Greeno’s request, the court considered the following factors listed in Maclin v. Freake, 650 F.2d 885, 887-89 (7th Cir.1981): the plaintiffs likelihood of success, the nature of the factual issues, the complexity of the legal issues, and the plaintiffs ability to represent himself. The court concluded that Greeno’s case was “both factually simple and legally straightforward” and that his pleadings demonstrated his ability to represent himself. Greeno later filed two more motions asking the district court to reconsider its denial of his request for counsel, but the district court denied both motions. We see several problems with the district court’s analysis. First, the district court’s reliance on the factors in Maclin was misplaced. In Farmer v. Haas we discarded Maclin’s multifactor test in favor of the following more straightforward inquiry: “given the difficulty of the case, did the plaintiff appear to be competent to try it himself and, if not, would the presence of counsel have made a difference in the outcome?” 990 F.2d 319, 322 (7th Cir.1993). Using this inquiry as a guide, we conclude that the district court abused its discretion by denying Greeno’s request for counsel. As an initial matter, we respectfully disagree with the district court’s assessment of Greeno’s case as “factually simple and legally straightforward.” As Greeno points out, his medical records, letters, health services requests, and inmate complaints span over two years. His case is also legally more complicated than a typical failure-to-treat claim because it requires an assessment of the adequacy of the treatment that Greeno did receive, a question that will likely require expert testimony. See Swofford v. Mandrell, 969 F.2d 547, 552 (7th Cir.1992) (pointing out that “difficult and subtle question” of state of mind required for deliberate indifference is too complex for" }, { "docid": "8005108", "title": "", "text": "the complaint to add three defendants. He is wrong. The district court had good reasons for its action. The motion was filed ten months after the cut-off date to amend pleadings, after discovery was complete, and when Sergeant Nickel’s summary judgment motion was ready for disposition. Luttrell did not explain his delay in filing the motion nor did the amended complaint include any allegations of personal responsibility by the proposed additional defendants. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir.1995) (“To recover damages under § 1983, a plaintiff must establish that a defendant was personally responsible for the deprivation of a constitutional right.”). Last, Luttrell argues that the district court should have granted his requests for counsel. The court reasoned that the facts were relatively straightforward in this case and that Luttrell was able to present a clear complaint, conduct discovery requests, and file numerous motions. However, Luttrell asserts that he not only was a “functional illiterate,” but that he also had to rely extensively on “jailhouse lawyers” to prepare his pleadings and motions. This court reviews a district court’s denial of a motion for appointment of counsel for an abuse of discretion. Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir.1995). Although civil litigants do not have a constitutional or statutory right to counsel, the district court has the discretion pursuant to 28 U.S.C. § 1915(e) to request attorneys to represent indigents in appropriate cases. Id. “In deciding whether .the district court abused its discretion in failing to appoint counsel, ‘the necessary inquiry is ...: given the difficulty of the case, did the plaintiff appear to be competent to try it himself and, if not, would the presence of counsel have made a difference in the outcome?’ ” Donald v. Cook County Sheriff’s Dept., 95 F.3d 548, 554 n. 1 (7th Cir.1996) (quoting Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993)). Although a good lawyer may have done better than Luttrell, that is not the test, for if it was “district judges would be required to request counsel for every indigent litigant.” Farmer, 990 F.2d at 323." }, { "docid": "22916445", "title": "", "text": "Billman, 56 F.3d at 789. Donald, like Billman, was precluded from conducting a precomplaint inquiry because of his incarceration. Worthington is thus inap-posite to the present case. The record as it stands is insufficient to allow us to determine whether the individual defendants had “such notice of the institution of the action that [they] will not be prejudiced in maintaining a defense on the merits.”, Fed.R.Civ.P. 15(c)(3)(A). This is a matter to be taken up by the district court on remand. Following the lead of the Soto court, we suggest that “on remand, the District Court should first permit reasonable discovery for identification of the individual officers who might be responsible for the alleged constitutional tort and then ... determine whether and when any of these officers received such notice of [Donald’s] suit against [the Sheriffs Department] as will avoid prejudice to the officers in maintaining the suit.” Soto, 80 F.3d at 37. In considering the notice issue, the district court should determine whether any of the special circumstances of this case constituted “good cause” for extending the Rule 4(j) period. B. Equitable Tolling If, on remand, the district court determines that the amendment adding any of the individual defendants does not relate back under Rule 15(c) because of lack of the proper notice, the court should consider whether the circumstances of this case call for the equitable tolling of the statute of limitations. The doctriné of equitable tolling “permits a plaintiff to sue after the statute of limitations has expired if through no fault or lack of diligence on his part he was unable to sue before, even though the defendant took no active steps to prevent him from suing.” Singletary v. Continental Illinois Nat’l Bank and Trust Co. of Chicago, 9 F.3d 1236 (7th Cir.1993). Application of the doctrine is appropriate, for example, when a plaintiff has “been injured and known he was injured, at which point the statute of limitations began to run, yet have been unable despite all reasonable diligence to learn ... the wrongdoer’s identity.” Id. Other factors which may justify equitable tolling are “that" }, { "docid": "23225002", "title": "", "text": "plaintiffs competence to litigate those claims himself.” Pruitt, 503 F.3d at 655. In determining whether the district court abused its discretion, we do not engage in an independent analysis of the plaintiffs claims and competency in order to decide for ourselves whether we think the plaintiff needed counsel. Id. at 658-59. Instead, we determine whether the district court applied the correct legal standard, and whether the court’s ultimate conclusion was reasonable given the information available to the court at the time the decision was made. Id. “ ‘We ask not whether [the judge] was right, but whether he was reasonable.’ ” Id. at 659 (quoting Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993)). The district court applied the proper legal standard when assessing Jackson’s requests. In response to Jackson’s first request, the court correctly explained that a request for appointment of counsel will be considered by the court only after the plaintiff has made reasonable efforts to obtain counsel from the private bar. See id. at 654; Gil v. Reed, 381 F.3d 649, 658 (7th Cir.2004) (“[T]he threshold consideration in determining whether to appoint counsel is whether the inmate has attempted and failed to procure counsel on his own.... ”). Jackson again requested the court’s assistance because, after reasonable efforts, he was unable to secure counsel himself. The court then addressed the substance of Jackson’s request by assessing the complexity of Jackson’s claims, and his ability to litigate his claims. See Pruitt, 503 F.3d at 655. The court denied Jackson’s request because his claims were not “of sufficient complexity or merit as [to] surpass the plaintiffs ability to properly develop and present them in this action.” It is evident that the district court undertook an inquiry into both the types of claims raised, and Jackson’s ability to litigate such claims. Because it applied the correct legal standard, our only task now is to decide whether the district court’s decision was reasonable. Id. at 658-59. Given the evidence before the district court at the time of Jackson’s requests, see id. at 659, the decision not to recruit counsel was reasonable" } ]

[ { "docid": "2139174", "title": "", "text": "-, 107 S.Ct. 837, 841-42, 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring) (discussing the “tension” between “the two central principles of our Eighth Amendment jurisprudence”). Turning back to the Texas sentencing procedure, we see that the jury is to respond to three “special issues.” The third issue involves provocation by the deceased. Tex.Crim.Proc.Code Ann. art. 37.071(b). It rarely enters into the decision of the jury. Instead, the focus is on the first two questions: whether the killing was deliberate with the reasonable expectation that death would follow and whether “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Tex.Crim.Proc.Code Ann. art. 37.071(b). The Texas Court of Criminal Appeals has consistently held that the words of these special issues have clear meanings that need no definition. Penry, 691 S.W.2d at 653-54. The jury is instructed, as here, that in answering “each Special Issue you may take into consideration all of the evidence .... ” No jury instruction on mitigating evidence is necessary because “[t]he jury can readily grasp the logical relevance of mitigating evidence to the issue of whether there is a probability of future criminal acts of violence.” Cordova v. State, 733 S.W.2d 175, 190 (Tex.Crim.App.1987) (quoting Quinones v. State, 592 S.W.2d 933, 947 (Tex.Crim.App.), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980)). The issue, then, is whether the questions, within their common meaning, permit the jury to act on all of the mitigating evidence in any manner they choose. In other words, is the jury precluded from the individual sentencing consideration that the Constitution mandates? The jury may only find whether the murder was deliberate with a reasonable expectation of death and whether there is a probability that the defendant will in the future commit criminal acts of violence that constitute a threat to society. Although most mitigating evidence might be relevant in answering these questions, some arguably mitigating evidence would not necessarily be. The jury, then, would be effectively precluded from acting on the latter. Actually, these questions are directed at additional" } ]

[ { "docid": "14758002", "title": "", "text": "that he questioned Hewitt any less aggressively as a result of the alleged representation than he otherwise would have done. In fact, Hewitt told the judge in a bench conference that he specifically waived his attorney-client privilege so that the lawyer could question him thoroughly, and that his relationship with the lawyer did “not have anything to do with this case.” Thus, given these facts, we perceive no conflict of interest between the relationship with Hewitt and an effective cross-examination of him in behalf of Russell. In sum, because Russell has not alleged any facts relating to his representation that, if proved, would entitle him to habeas relief, he has no right to an evidentiary hearing. V The fourth issue for consideration is presented by Russell’s brief statement that we should consider the constitutionality of the Texas death penalty scheme in light of the Supreme Court’s decision in the then-pending case of Penry v. Lynaugh, 832 F.2d 915 (5th Cir.1987), cert. granted, — U.S. -, 108 S.Ct. 2896, 101 L.Ed.2d 930 (1988). Since Russell’s brief was filed in this case, the Supreme Court has issued its opinion in Penry. Penry v. Lynaugh, — U.S. -, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). The Supreme Court held that the Texas death penalty statute was unconstitutional as applied in Penry because the statutory jury instructions provided no vehicle for the jury to express its reasoned moral response and give mitigating effect to Penry’s evidence of mental retardation and childhood abuse. No such conclusion is warranted here. Under the Texas capital sentencing procedure, a jury is required to answer three special issues: (1) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any," }, { "docid": "6882441", "title": "", "text": "presented, the conduct of the sentencing phase, and the instructions provided the jury pursuant to the Texas capital sentencing staf- ute. Contemporaneous objection would not initiate a finely-tuned procedure that might repair an otherwise defective trial, but rather would confront the limited, mandatory terms of the Texas statute in an attempt to repair the sentencing phase of trial alone. Mayo’s counsel satisfied the prerequisites of the claim by offering mitigating evidence at the sentencing phase. Although it may frequently be the case that timely enforcement of state procedural bars will effectively require contemporaneous objection in order to preserve a Penry claim for review by state and federal courts, the nature of the claim itself does not duplicate that predicate in the absence of a tenable procedural default argument. IV. For the foregoing reasons, we GRANT the motion for rehearing, REVERSE the district court’s denial of a writ of habeas corpus, REMAND for further proceedings consistent with this opinion, and revise those portions of our previous opinions that would be inconsistent with this opinion. . 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988). . — U.S.-, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). . Tex.Crim.Proc.Code Ann. art. 37.071(b) (Supp. 1990) states that: On conclusion of the presentation of the evidence, the court shall submit the following three issues to the jury: (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (3) if raised by the evidence, whether the conduct of the defendant in killing the de ceased was unreasonable in response to the provocation, if any, by the deceased. The parties agreed that the special issue three was not raised by the evidence, and so that question was not submitted to the jury. . Mayo v. State, 708 S.W.2d 854 (Tex.Crim.App. 1986) (en banc). . 487 U.S. 164, 108 S.Ct. 2320, 101" }, { "docid": "2322392", "title": "", "text": "state witnesses concerning specific acts of violence by Mayo. Two witnesses also testified generally that Mayo’s father was abusive: his mother stated that Mayo’s father beat him, verbally abused him, and threatened the children with weapons; a former employer stated that Mayo’s father whipped him. On federal habeas review, the district court, “having reviewed the record and questioned the Petitioner personally, deter mined that the Petitioner is familiar with Penry v. Lynaugh and has no additional evidence regarding mitigating circumstances to offer.” On appeal and in response to the petition for rehearing, Mayo does not articulate, except in a conclusory manner, how the jury was unable to express its reasoned moral response and give effect to his mitigating evidence. For these reasons, the petition for rehearing is DENIED. . — U.S. —, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). . Mayo v. Lynaugh, 882 F.2d 134, 140 (5th Cir.1989) (footnotes omitted). . See id. at n. 29 (citing Graham v. Lynaugh, 854 F.2d 715 (5th Cir.1988), vacated remanded for further consideration in light of Penry, — U.S. —, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)). . See Selvage v. Lynaugh, 842 F.2d 89, 93 (5th Cir.1988). . Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977). . King v. Lynaugh, 868 F.2d 1400, 1406 (5th Cir.1989) (Rubin, J. concurring), cert. denied, — U.S. —, 109 S.Ct. 1576, 103 L.Ed.2d 942 (1989); id. at 1408 (Johnson, J. concurring). . See e.g., King, 868 F.2d at 1405; Bell v. Lynaugh, 858 F.2d 978, 985 (5th Cir.1988), cert. denied, — U.S. —, 109 S.Ct. 3262, 106 L.Ed.2d 607 (1989), effect of order denying writ suspended pending disposition of petition for rehearing, 1989 U.S. Lexis 3489 (U.S. Aug. 2, 1989)." }, { "docid": "13915700", "title": "", "text": "that the district court erred in rejecting his claim that the statutory special issues submitted to the jury during the sentencing phase of his trial prevented the jury from considering and giving effect to crucial mitigating evidence in violation of Penry v. Lynaugh, 492 U.S. 302, 322-323, 109 S.Ct. 2934, 2948-49, 106 L.Ed.2d 256 (1989). Pursuant to Texas Code of Criminal Procedure Article 37.071, the state trial court submitted two special interrogatories to the jury at the close of the sentencing phase: (1) Was the conduct of the defendant, Wayne East, that caused the death of the deceased, Mary Eula Sears, committed deliberately and with the reasonable expectation that the death of the deceased or another would result? (2) Is there a probability that the defendant, Wayne East, would commit criminal acts of violence that would constitute a continuing threat to society? East contends that neither interrogatory allowed the jury to consider the fact that he used illegal drugs immediately prior to the murder in mitigation of his sentence. East’s Penry claim is foreclosed by this court’s recent decision in Lackey v. Scott, 28 F.3d 486 (5th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 743, 130 L.Ed.2d 644 (1995). In Lackey, we held that Texas’ statutory special issues allowed the jury to consider and give mitigating effect to evidence that the defendant was intoxicated at the time of the offense. Id. at 489. According to the court, evidence of voluntary intoxication is relevant to deciding whether the defendant acted deliberately. This evidence is also relevant to whether the defendant posed a continuing threat to society. The court concluded that Texas’ special issues adequately addressed both of these factors: [V]oluntary intoxication is not the kind of “uniquely severe permanent handicap[ ] with which the defendant was burdened through no fault of his own” that requires a special instruction to ensure that, the mitigating effect of such evidence finds expression in the jury’s sentencing decision. Id. (quoting Graham v. Collins, 950 F.2d 1009, 1029 (5th Cir.1992), aff'd, — U.S. -, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993)). We conclude, therefore, that" }, { "docid": "6213916", "title": "", "text": "When the trial court errs in overruling a challenge for cause against a venireman, the defendant is harmed only if he uses a peremptory strike to remove the venireman and therefore suffers a detriment from the loss of a strike. Error is preserved only if the defendant exhausts his peremptory challenges, is denied a request for an additional peremptory challenge, identifies a member of the jury as objectionable and claims that he would have struck the juror with a peremptory challenge. . Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988) (finding no due process or sixth amendment violation where capital murder defendant exhausted his peremptory challenges removing a juror who should have been excused for cause in the absence of a showing that any juror who ultimately was seated was subject to removal for cause). .Texas has since revised the submission to require an instruction informing the jury expressly to consider any mitigating evidence in answering the three special issues. Tex.Code Crim.Proc. art. 37.071, § 2(d)(1) (Vernon Supp.1993). At the time of trial the issues were: (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would occur; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. . 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). . Id. . Graham v. Collins, - U.S. -, -, 113 S.Ct. 892, 902, 122 L.Ed.2d 260 (1993). . Graham v. Collins, 950 F.2d 1009, 1027 (5th Cir.1992) (en banc), aff'd, - U.S. -, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993). . Cordova v. Collins, 953 F.2d 167 (5th Cir.), cert. denied, — U.S. -, 112 S.Ct. 959, 117 L.Ed.2d 125 (1992); James v. Collins, 987 F.2d 1116 (5th Cir.1993). Unlike the dissent, we" }, { "docid": "6088338", "title": "", "text": "plan was revived by the Supreme Court grant of certiorari in Franklin v. Lynaugh, cert. granted, — U.S. —, 108 S.Ct. 221, 98 L.Ed.2d 180 (1987), aff’d in — U.S. —, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) and Penny v. Lynaugh, 832 F.2d 915 (5th Cir.1987), cert. granted, — U.S. —, 108 S.Ct. 2896, 101 L.Ed.2d 930 (1988). To deny Bridge the right to raise this revived issue in this capital case would be highly prejudicial. Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). This case, therefore, falls within the established exception to the procedural bar through the failure of the state courts to rely fully upon it and by the extreme prejudice resulting from a later revival of what was considered to be a settled question. Thus, we can decide this appeal on the merits of the motion for a certificate of probable cause to appeal the denial by the Federal District Court of his petition for habeas corpus. II. The Merits of the Claim Under the Texas Code of Criminal Procedure, after finding Bridge guilty of murder, the court presented in aggravation two special issues to the jury in the sentencing portion of his capital murder trial: (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. Tex.Crim.Proc.Code Ann., Art. 37.071(b) (Vernon, 1981). The jury answered both questions affirmatively, which, under the law compelled the court to sentence the defendant to death. There is also a third question under the statutory scheme which is not at issue in this case. It concerns provocation by the victim. Bridge argues that the Texas method of presenting aggravating circumstances to the jury which results in death sentences is unconstitutional under the Eighth and Fourteenth Amendments. The assertion is that it does not allow the jury adequately to consider" }, { "docid": "21466402", "title": "", "text": "be first presented to the state court); see also Dowthitt, 230 F.3d at 748; Graham v. Johnson, 94 F.3d 958, 968 (5th Cir.1996); Brown, 701 F.2d at 495-96. Without the affidavits, Smith’s ineffective assistance of counsel claim, based on his good institutional behavior and diminished capacity due to prolonged drug use, fails to demonstrate any deficiencies in trial counsel’s investigation. Accordingly, we deny habe-as relief on this claim. B. Penry Claim Under AEDPA, we review Smith’s habeas claim applying only “rule[s] of law that [were] clearly established at the time his state-court conviction became final.” Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Smith’s conviction became final on November 15, 1993. Smith argues under Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) [hereinafter Penry I], that the Texas special issues and nullification instruction provided an inadequate vehicle for the jury to consider his mitigation evidence. More specifically, Smith asserts that the jurors could not give full effect to the following mitigating factors: his intoxication at the time of the offense and long-term drug addiction; his impoverished family background; and his character for mation in a' crime-ridden neighborhood. The State contends that the special issues allowed the jurors to give full effect to Smith’s evidence of substance abuse and childhood circumstances. The jury affirmatively answered all three special issues submitted pursuant to Tex.Code Crim. Proc. art. 37.071(b), which read as follows: (1) Was the conduct of the defendant, Roy Gene Smith, that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased or another would result? (2) Is there a probability that the defendant, Roy Gene Smith, would commit criminal acts of violence that would constitute a continuing threat to society? (3) Was the conduct of the defendant, Roy Gene Smith, in killing the deceased unreasonable in response to the provocation, if any, by the deceased? In response to Penry I, the state trial court instructed the jury to give effect to the mitigating evidence by submitting a negative answer to" }, { "docid": "6882442", "title": "", "text": "U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988). . — U.S.-, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). . Tex.Crim.Proc.Code Ann. art. 37.071(b) (Supp. 1990) states that: On conclusion of the presentation of the evidence, the court shall submit the following three issues to the jury: (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (3) if raised by the evidence, whether the conduct of the defendant in killing the de ceased was unreasonable in response to the provocation, if any, by the deceased. The parties agreed that the special issue three was not raised by the evidence, and so that question was not submitted to the jury. . Mayo v. State, 708 S.W.2d 854 (Tex.Crim.App. 1986) (en banc). . 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988). . 832 F.2d 915 (5th Cir. 1987), aff’d in part and rev’d in part, — U.S. -, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). . — U.S.-, 108 S.Ct. 2896, 101 L.Ed.2d 930 (1988) (granting certiorari in part). . 882 F.2d 134, 140 (5th Cir. 1989). . Id. at 140-41 (citations omitted). . 883 F.2d 358, 359 (5th Cir.1989) (citing King v. Lynaugh, 868 F.2d 1400, 1406 (5th Cir.) (Rubin, J., concurring), 1408 (Johnson, J., concurring), cert. denied, — U.S. -, 109 S.Ct. 1576, 103 L.Ed.2d 942 (1989)). . 883 F.2d at 359-60. . See Penry, 109 S.Ct. at 2944. . See Fed.R.App.Proc. 40(a); see, e.g., Bridge v. Lynaugh, 863 F.2d 370 (5th Cir.1989) (granting second rehearing to find absence of legal cause for petitioner’s procedural default); Sun Oil Co. v. Burford, 130 F.2d 10, 13 (5th Cir.1942) (court may grant second petition for rehearing to prevent injustice), rev'd on other grounds, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). . See 1 J. Liebman, Federal Habeas Corpus Practice and" }, { "docid": "6213917", "title": "", "text": "time of trial the issues were: (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would occur; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. . 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). . Id. . Graham v. Collins, - U.S. -, -, 113 S.Ct. 892, 902, 122 L.Ed.2d 260 (1993). . Graham v. Collins, 950 F.2d 1009, 1027 (5th Cir.1992) (en banc), aff'd, - U.S. -, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993). . Cordova v. Collins, 953 F.2d 167 (5th Cir.), cert. denied, — U.S. -, 112 S.Ct. 959, 117 L.Ed.2d 125 (1992); James v. Collins, 987 F.2d 1116 (5th Cir.1993). Unlike the dissent, we do not believe we have before us the question whether the jury instruction as given, pursuant to section 8.04 of the Texas Penal Code, affirmatively precluded the jury’s consideration of Nethery’s purported intoxication. There was no prior submission to that effect in either the state or federal courts. In fact, as the dissent notes, the Texas courts found the objection Nethery actually presented to be procedurally barred and also found that he was not so intoxicated at the time of the offense as to warrant submission of the temporary insanity instruction. Further, not only did Nethery fail to preserve this point, he actually requested a definition of insanity' — basing his later challenges on the denial thereof — which would have created the precise prejudice the dissent fears. The dissent argues that the Texas courts have twice excused procedural defaults where the defendant sought to argue a Penry claim because \"Penry 'constituted a substantial change in the law....’” Selvage v. Collins, 816 S.W.2d 390, 392 (Tex.Crim.App.1991) (citing Black v. State, 816 S.W.2d 350, 374 (Tex.Crim.App.1991))." }, { "docid": "8597018", "title": "", "text": "v. Angelone, 522 U.S. 269, 274, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998) (internal quotation marks omitted); see also Kansas v. Marsh, 548 U.S. 163, 173-74, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006) (\"[A] state capital sentencing system must ... permit a jury to render a reasoned, individualized sentencing determination based on a death-eligible defendant’s record, personal characteristics, and the circumstances of his crime.”). . 472 F.3d 287, 293 (5th Cir.2006) (en banc) (citations omitted), cert. denied, 551 U.S. 1141, 127 S.Ct. 2974, 168 L.Ed.2d 719 (2007). . See Abdul-Kabir v. Quarterman, 550 U.S. 233, 246, 127 S.Ct. 1654, 167 L.Ed.2d 585 (2007) (\"[Wjell before our decision in Penry I, our cases had firmly established that sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty .... ”). . For a more exhaustive history, see Judge Stewart’s opinion in Nelson, 472 F.3d at 293-303. . See Tex.Code Crim. Proc. art. 37.0711, § 3(b)(1) (asking \"whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result”). . See id. § 3(b)(2) (asking “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society”). . See id. § 3(b)(3) (asking, \"if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased”). . Penry v. Lynaugh, 492 U.S. 302, 328, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (“Penry I\"), overruled, on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). . In cases in which the defendant was convicted under the law of parties, the jury is also required to answer a third special issue, which asks whether the defendant actually caused the death, intended to cause a death, or anticipated a death. See Tex.Code Crim. Proc. art. 37.071, § 2(b)(2). ." }, { "docid": "6882446", "title": "", "text": "merits before the Supreme Court). . 109 S.Ct. at 2941-42; Penry v. Lynaugh, 832 F.2d 915, 917 (5th Cir.1987). . See 109 S.Ct. at 2942-43. . Id. at 2950. . Ibid, at 2949. . Id. . Contrast Russell v. Lynaugh, 892 F.2d 1205 (5th Cir.1989) (mitigating evidence specifically proffered in context of special issues); McCoy v. Lynaugh, 874 F.2d 954, 966 (5th Cir.1989) (same). . Id. at 2951 (emphasis added). . Id. at 2954-58. . Contrast DeLuna v. Lynaugh, (5th Cir.1990) (deliberate failure of trial counsel to introduce mitigating evidence, combined with absence of compelling \"kind and quantum\" of mitigating evidence offered on collateral review, does not warrant relief under Penry) modifying 890 F.2d 720 (5th Cir. 1989); McCoy v. Lynaugh, 874 F.2d at 966 (no mitigating evidence offered during sentencing phase of trial); King v. Lynaugh, 868 F.2d 1400, 1405 (5th Cir.1989) (per curiam) (evidence on drug dependency presented on collateral review that was found not credible by state habeas court, coupled with allegation of disadvantaged youth, does not present sufficient case fer diminished culpability to support procedurally defaulted Penry claim). . Id. at 2943-44. . Id. at 2947. . Id. at 2951. . 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). . 864 F.2d 348, 368-71 (5th Cir.1988), cert, denied, &emdash; U.S.-, 109 S.Ct. 2090, 104 L.Ed.2d 653 (1989). . Id. at 369-70. . Id. at 370. . 109 S.Ct. at 2948-51. . See, e.g., Fierro v. Lynaugh, 879 F.2d 1276, 1281-82 (5th Cir.1989); King v. Lynaugh, 868 F.2d at 1405; but see id. at 1407 (Rubin, J., concurring) (citing Williams v. Lynaugh, 837 F.2d 1294, 1296 (5th Cir.1988)). .883 F.2d 358 (5th Cir.1989); 882 F.2d 134 (5th Cir.1989)." }, { "docid": "5793409", "title": "", "text": "conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; (3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. Also at the time of the petitioner’s trial, the Texas capital sentencing statute directed the trial court to instruct the jury that \"(1) it may not answer any issue 'yes' unless it agrees unanimously; and (2) it may not answer any issue ‘no’ unless 10 or more jurors agree.” See Texas Code or Criminal Procedure, Art. 37.071(d) (Vernon 1981). The Texas capital sentencing statute also provided as follows: If the jury returns an affirmative finding on each special issue submitted under this article, the court shall sentence the defendant to death. If the jury returns a negative finding or is unable to answer any issue submitted under this article, the court shall sentence the defendant to confinement in the Texas Department of Corrections for life. See Texas Code or Criminal Procedure, Art. 37.071(e) (Vernon 1981) (emphasis added). . See Graham v. Collins, 506 U.S. 461, 474-75, 113 S.Ct. 892, 901, 122 L.Ed.2d 260 (1993), quoting Penry v. Lynaugh, 492 U.S. at 322, 109 S.Ct. at 2948. . See Graham v. Collins, 506 U.S. at 474, 113 S.Ct. at 901, quoting Penry v. Lynaugh, 492 U.S. at 328, 109 S.Ct. at 2952. For a discussion of the Supreme Court's holding in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), and the relationship between that opinion and the holding in Penry, see Adanandus v. Johnson, 947 F.Supp. 1021, 1039-41 (W.D.Tex.1996), affirmed, 114 F.3d 1181, 1997 WL 256743 (5th Cir.1997) [Table]. . See Arave v. Creech, 507 U.S. 463, 470-71, 113 S.Ct. 1534, 1540, 123 L.Ed.2d 188 (1993), (holding that to satisfy the Eighth and Fourteenth Amendments, a" }, { "docid": "6882443", "title": "", "text": "L.Ed.2d 155 (1988). . 832 F.2d 915 (5th Cir. 1987), aff’d in part and rev’d in part, — U.S. -, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). . — U.S.-, 108 S.Ct. 2896, 101 L.Ed.2d 930 (1988) (granting certiorari in part). . 882 F.2d 134, 140 (5th Cir. 1989). . Id. at 140-41 (citations omitted). . 883 F.2d 358, 359 (5th Cir.1989) (citing King v. Lynaugh, 868 F.2d 1400, 1406 (5th Cir.) (Rubin, J., concurring), 1408 (Johnson, J., concurring), cert. denied, — U.S. -, 109 S.Ct. 1576, 103 L.Ed.2d 942 (1989)). . 883 F.2d at 359-60. . See Penry, 109 S.Ct. at 2944. . See Fed.R.App.Proc. 40(a); see, e.g., Bridge v. Lynaugh, 863 F.2d 370 (5th Cir.1989) (granting second rehearing to find absence of legal cause for petitioner’s procedural default); Sun Oil Co. v. Burford, 130 F.2d 10, 13 (5th Cir.1942) (court may grant second petition for rehearing to prevent injustice), rev'd on other grounds, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). . See 1 J. Liebman, Federal Habeas Corpus Practice and Procedure § 5.3(b), at 45-46 n. 7 (1988). . See Mayo v. Lynaugh, 883 F.2d at 359, (citing Selvage v. Lynaugh, 842 F.2d 89, 93 (5th Cir. 1988)). . See, e.g., Engle v. Isaac, 456 U.S. 107, 125-26 n. 28, 102 S.Ct. 1558, 1570-71 n. 28, 71 L.Ed.2d 783 (1982). . Cf. Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987). . See, e.g., Reddix v. Thigpen, 805 F.2d 506, 512 (5th Cir.1986); Wiggins v. Procunier, 753 F.2d 1318, 1321 (5th Cir.1985); Washington v. Watkins, 655 F.2d 1346, 1368 (5th Cir.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982); Smith v. Estelle, 602 F.2d 694, 708 n. 19 (5th Cir.1979), aff’d, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981); LaRoche v. Wainwright, 599 F.2d 722, 724 (5th Cir.1979); see also Granberry, 481 U.S. at 131, 131 n. 3, 107 S.Ct. at 1673, 1673 n. 3; Engle v. Isaac, 456 U.S. at 125 n. 26, 102 S.Ct. at 1570 n. 26; Estelle v. Smith, 451 U.S." }, { "docid": "5793408", "title": "", "text": "494 U.S. at 439-44, 110 S.Ct. at 1231-34. . 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). . See Penry v. Lynaugh, 492 U.S. at 309, 109 S.Ct. at 2941. . Id. . See Graham v. Collins, 506 U.S. 461, 473, 113 S.Ct. 892, 901, 122 L.Ed.2d 260 (1993), quoting Penry v. Lynaugh, 492 U.S. at 322, 109 S.Ct. at 2948. . At the time of petitioner’s capital murder trial in May and June, 1989, the Texas capital sentencing procedure called for a bifurcated trial in which the guilt or innocence phase of the trial occurred prior to any consideration of punishment by the jury. In the event the jury found the defendant guilty of capital murder, the same jury would remain empaneled and the punishment phase of the trial would proceed. See Texas Code of Criminal Procedure, Art. 37.071 (Vernon 1981). At that time, the Texas capital sentencing statute directed the trial court to submit the following issues to the jury at the punishment phase of the capital trial: (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; (3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. Also at the time of the petitioner’s trial, the Texas capital sentencing statute directed the trial court to instruct the jury that \"(1) it may not answer any issue 'yes' unless it agrees unanimously; and (2) it may not answer any issue ‘no’ unless 10 or more jurors agree.” See Texas Code or Criminal Procedure, Art. 37.071(d) (Vernon 1981). The Texas capital sentencing statute also provided as follows: If the jury returns an affirmative finding on each special issue submitted under this article, the court shall sentence the defendant to death. If the jury returns" }, { "docid": "10428541", "title": "", "text": "reject Briddle’s fourth and final point of error. Conclusion Having fully considered and rejected each of Briddle’s points of error, the judgment of the district court is accordingly AFFIRMED. . These issues were: \"(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; \"(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;” Id. . Thomas has been licensed to practice since May 1965, served as a prosecutor in the Harris County District Attorney’s office until 1969, and since then had practiced as a criminal defense attorney. Prior to Briddle's trial, he had defended four capital murder cases. Sims was licensed to practice in May 1969. He was an Assistant District Attorney in Harris County until 1975, when he went into private practice, primarily in criminal law. He had defended two capital murder cases, one with Thomas, before Briddle's trial. . The order states: \"In the instant cause, applicant presents nine allegations in which he seeks to challenge the validity of his conviction. The trial court has entered findings of fact and conclusions of law and recommended the relief sought be denied. This Court has reviewed the record with respect to the allegations now made by applicant and finds that the findings of fact and conclusions of law entered by the trial court are supported by the record. The relief sought is denied on the basis of the trial court's findings of fact and conclusions of law.” The order contains at its foot the notation: \"Clinton, J., would stay further proceedings pending disposition of Penry v. Lynaugh, No. 87-6177, cert. granted 487 U.S. 1233 [108 S.Ct. 2896, 101 L.Ed.2d 930] (1988).\" . It also determined that the request for stay pending Penry was moot. Penry was handed down June 26, 1989. Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). . A single exception is that on October 19, 1990, attorney" }, { "docid": "14758003", "title": "", "text": "was filed in this case, the Supreme Court has issued its opinion in Penry. Penry v. Lynaugh, — U.S. -, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). The Supreme Court held that the Texas death penalty statute was unconstitutional as applied in Penry because the statutory jury instructions provided no vehicle for the jury to express its reasoned moral response and give mitigating effect to Penry’s evidence of mental retardation and childhood abuse. No such conclusion is warranted here. Under the Texas capital sentencing procedure, a jury is required to answer three special issues: (1) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. Tex.Code Crim.Proc.Ann. art. 37.071 (Vernon 1981 & Supp.1989). The only evidence offered at trial that was even arguably mitigating was presented to the jury in the context of the second special issue. The argument of Russell’s counsel at the penalty phase best emphasized this position thus: But I do want to talk to you about the second issue. This young man has lived for 26, 27, 28 years in and around Ford Bend County, I assume. Counsel for the State of Texas here says he has. The first 18, 19 years — whatever it was — 20 years, he had no trouble. If he had have they would have had it here in the record. What has suddenly changed him to make you believe that he would in the future continue acts of violence that would constitute a continuing threat to society? Well, if you give just ten noes to this No. 2 Issue his sentence is life an automatic life term in the penitentiary. This crime-free period in Russell’s background was" }, { "docid": "8395151", "title": "", "text": "or desire to engage in the conduct or cause the result.” Under the same provision, a person acts \"knowingly” \"when he is aware that his conduct is reasonably certain to cause the result.” . Felder v. State, 848 S.W.2d 85 (Tex.Crim.App.1992) (holding that evidence of intent was sufficient for a capital murder conviction under Texas statute where defendant had stabbed victim numerous times, tried to smother and then stabbed another victim, carried a gun with him in case anyone tried to stop the robbery, and was heard commenting that \"dead men tell no lies”); Lincecum v. Collins, 958 F.2d 1271 (5th Cir.1992) (holding that defendant was not entitled to lesser included offense instruction where evidence of his intent to kill was overwhelming; defendant had choked victim for approximately three minutes after she was dead and left her body in an automobile trunk when temperature exceeded 100 degrees). . Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). . Harris v. Johnson, 81 F.3d 535, 539 (5th Cir.) cert. denied, 517 U.S. 1227, 116 S.Cl. 1863, 134 L.Ed.2d 961 (1996) (internal quotations and citations omitted). . Jones had a verbal IQ of 77, a performance IQ of 85, and a full scale IQ of 80. . Andrews v. Collins, 21 F.3d 612 (5th Cir.1994) (holding that defendant with IQ between 70 and 80 fell within borderline range of intelligence and thus failed to show mental retardation under Penry). . Harris (holding that petitioner’s Penry claim failed because petitioner failed to present any evidence of a nexus between his alleged mental disabilities and the criminal act). . Andrews v. Collins, 21 F.3d 612 (5th Cir.1994). .Jones was sentenced under former article 37.071 of the Texas Code of Criminal Procedure, which asked the jury: 1. whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with reasonable expectation that the death of the deceased would result; 2. whether there is a possibility that the defendant would commit criminal acts of violence Lhat would constitute a continuing threat to society; and 3. if" }, { "docid": "17034087", "title": "", "text": "raised on federal habe-as has never been presented to the state courts at all. In such a context, federal courts quite properly look to, and apply, state procedural default rules in making the congressionally mandated determination whether adequate remedies are available in state court.” Harris, 489 U.S. at 270, 109 S.Ct. at 1047 (O'Connor, J., concurring) (quoting Harris, 489 U.S. at 264, 109 S.Ct. at 1044 (majority opinion)). . The exceptions include the inability to raise the claim in the first petition because of facts unknown at the time, see Tex.Code Crim. Proc. Ann. art. 11.071, § 5(a)(1) (Vernon Supp.1998), and a showing of actual innocence, see id. art. 11.071, § 5(a)(3). Muniz offers no showing on any of these prongs, nor does he argue that the Texas Court of Criminal Appeals would find an exception applicable to his case. . \"In order to prove a fundamental miscarriage of justice, the prisoner must assert his actual innocence.” Glover, 128 F.3d at 904 (citation omitted). . The Texas capital sentencing scheme requires the jury to answer two questions affirmatively. First, it must find that \"the conduct of the defendant that caused the death of the deceased- was committed deliberately and with the reasonable expectation that the death of the deceased or another would result.” Tex.Code Crim. Proc. art. 37.071, § 2(b)(1) (Vernon 1981). Second, it must find that \"there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.\" Id. art. 37.071, § 2(b)(2). . See Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978) (plurality opinion); accord Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982); cf. Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989) (\"The sentencer must also be able to consider and give effect to [mitigating] evidence in imposing sentence.”). . Tex.Code Jud. Conduct Canon 2(B) (emphasis added), reprinted in Tex Gov’t Code Ann., tit. 2, subtit. G app. B (Vernon 1988). . Id. Canon 3(B)(2). . Cf. Callins" }, { "docid": "8597019", "title": "", "text": "the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result”). . See id. § 3(b)(2) (asking “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society”). . See id. § 3(b)(3) (asking, \"if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased”). . Penry v. Lynaugh, 492 U.S. 302, 328, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (“Penry I\"), overruled, on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). . In cases in which the defendant was convicted under the law of parties, the jury is also required to answer a third special issue, which asks whether the defendant actually caused the death, intended to cause a death, or anticipated a death. See Tex.Code Crim. Proc. art. 37.071, § 2(b)(2). . Penry v. Johnson, 532 U.S. 782, 803, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (“Penry II\"). . Request for the Issuance of a COA and Supporting Brief, supra note 21, at 21-22. . Id. at 28 (citing Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)). . Id. at 31. . Id. at 30-31. . Id. at 31. . See 242 F.3d 248, 259 (5th Cir.) (“Beazley maintained on direct appeal that the Texas statute's definition of 'mitigating evidence’ is facially unconstitutional because it limits mitigation’ to factors that render a capital defendant less morally 'blameworthy' for commission of the capital murder.”), cert. denied sub nom. Beazley v. Cockrell, 534 U.S. 945, 122 S.Ct. 329, 151 L.Ed.2d 243 (2001). . Id. at 260 (quoting Lockett, 438 U.S. at 604, 98 S.Ct. 2954). . Id. (citing Prystash v. State, 3 S.W.3d 522, 534 (Tex.Crim.App.1999) (en banc), cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000); Cantu v. State, 939 S.W.2d 627, 648-49 (Tex.Crim.App.) (en banc), cert. denied, 522" }, { "docid": "398902", "title": "", "text": "as to deprive him of effective assistance of counsel. To the extent this is a claim of constructive denial of sixth amendment rights, we rejected this argument in May v. Collins, explaining that a rule allowing such ineffective assistance claims would be impossible to cabin because tactical decisions concerning the type of evidence to present in sentencing proceedings “are always channelled by the requirements of the statute under which the state proceeds.” To the extent the argument would fault trial counsel’s decision to forego developing mitigating evidence that might also be hurtful, it offers no more than the eighth amendment contention which likewise is foreclosed. For these reasons, the application for a certificate of probable cause and the motion for stay of execution are DENIED. . 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). . 950 F.2d 1009 (5th Cir.) (en banc), cert. granted, — U.S.-, 112 S.Ct. 2937, 119 L.Ed.2d 563 (1992). . Demouchette v. State, 731 S.W.2d 75 (Tex.Cr. App.1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987). . Under Tex.Code Crim.Proc.Ann. Art. 37.071(b) (Vernon 1981), since amended, the jury must answer special issues: (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. If the jury unanimously answers \"yes” to each issue submitted, the court must sentence the defendant to death; otherwise the sentence is life imprisonment. The third special issue was not relevant and was not submitted. . Demouchette v. State, supra. . Cordova v. Collins, 953 F.2d 167, 169 (5th Cir.) (internal quotations and citations omitted), cert. denied, — U.S.-, 112 S.Ct. 959, 117 L.Ed.2d 125 (1992). . 950 F.2d at 1026-27 (emphasis in original)." } ]

[ { "docid": "22543648", "title": "", "text": "if any, of the United States or the laborers or material-men, and also that if the Guar-, anty Company is entitled to subrogation to any right of the United States Government arising through the building contract, the bank can make no claim by reason of the assignment. Henningsen, for we may: leave Clive out of consideration, entered into a contract with the United States to construct buildings. The Guaranty Company was surety on that contract. Its stipulation was not merely that the contractor should construct the buildings, but that he should pay promptly and in full all persons supplying labor and material in the prosecution of the work contracted for. He did not make this payment, and' the Guaranty Company, as surety, was compelled to and did make the payment. Is its equity superior to that of one who simply loaned money to the contractor to be by him used as he saw fit, either in the performance of his building contract or in any other way? We think it is. It paid the laborers and material-men and thus released the contractor from his obli ,ations to them, and to the same extent released the Government from all equitable obligations to see that the laborers and supply men were paid. It did this not as a volunteer but by reason of contract obligations entered into before the commencement of the work. Prairie State Bank v. United States, 164 U. S. 227, is in point. In that case Sundberg & Co., in 1888, contracted with the Government to build a custom-house at Galveston. Hitchcock was surety on that contract. On February 3, 1890, in consideration of advances made and to be made by the Prairie Bank, Sundberg & Co. gave a power of attorney to.a representative of the bank to receive from the United States the final payment under the contract. In May, 1890, Sundberg & Co. defaulted in the performance of this contract and Hitchcock, as surety, without any knowledge of the alleged rights ' of the bank, assumed the completion of the contract and disbursed therein about $15,000 in" } ]

[ { "docid": "11189250", "title": "", "text": "ordinary and primary one, and usually would be sufficient, and to do this without diminishing the obligation of the government to see that these claims were paid, as far as that result could be accomplished by the funds which it retained. In that event the equitable priority of such claimants in the fund, if such priority there had been, would remain and could be enforced in the appropriate cases either directly or by subrogation. “It is not necessary to consider which of these views would seem the better one, if the question were open. We think it has been foreclosed by the decision of the Supreme Court in Henningsen v. U. S. [F. & G. Co.] [citation omitted]. In that case, the surety upon a bond of this kind [payment of laborers and materialmen], given pursuant to the 1894 statute, and who had been compelled to pay its surety obligation, was held entitled to priority in the retained fund as against a general creditor of the contractor. The case was essentially different from the Prairie State Bank Case, because there the surety had taken over and completed the contract and the performance of the contractor’s obligation to the United States as the other party to the contract, and so had become entitled to the security which the United States held against the contractor; in the Henningsen Case, the contractor himself had completely performed the contract and had finished the work. It would seem, therefore, that subrogation in the Henningsen Case could not be to any security which the United States held against the contractor; there was no such element in the case. The surety’s claim of priority in the fund was sustained, and this was done on the stated theory of subrogation. Since there cannot be the transfer of a right by subrogation, unless there is a right to be transferred, we think the necessary effect of the decision is to hold that the laborers and materialmen, in spite of or in addition to the giving of the bond, had an original and continuing equitable priority in the fund, and" }, { "docid": "8645399", "title": "", "text": "than where he elects to respond in damages. And this conclusion we think is supported by authority as well as by reason. The leading case on the rights of the surety is Prairie State Bank v. U. S., supra, in which the opinion was written, by Mr. Justice White. Although that case dealt with rights iñ a retained percentage, the principles upon wMeh the decision was based support as well the right of the surety to unpaid current estimates. The court there said: “Hitchcock’s right of subrogation, when it became capable of enforcement, was a right to resort to- the securities and remedies which the creditor (the United States) was capable of asserting against its debtor Sundberg & Company, had the security not satisfied the obligation of the contractors, and one of such remedies was the right based upon the original contract to appropriate the ten per cent, retained in its hands. If the United States had been compelled to complete the work, its right to forfeit the ten per cent, and apply the accumulations in reduction of the damage sustained remained. The right of Hitchcock to subrogation, therefore, would clearly entitle him when, as surety, he fulfilled the obligation of Sundberg & Company, to the government, to be substituted to the rights which the United States might have asserted against the fund.” Likewise, it may be said here that if the highway commission had been compelled to finish the work, it had the right to forfeit the amounts due on unpaid current estimates as well as the retained percentage, and the right of the casualty company to subrogation entitled it to be substituted to the right which the highway commission might have asserted against these funds. In the ease of Henningsen v. U. S. Fidelity & Guaranty Co., 208 U. S. 404, 28 S. Ct. 380, 52 L. Ed. 547, no distinction whatever was made with regard to retained percentage, but the sprety was held entitled to á prior equity on a general balance due under a contract, in preference to a bank holding an assignment from the contractor." }, { "docid": "23237731", "title": "", "text": "such claimants by eliminating the possibility of a laborer or supplier acquiring an equitable lien against funds held by the United States. That position is not novel; it antedates the Sehmoll and Munsey cases some thirty years, at least, having been specifically recognized, analyzed, and clarified in 1921 by the Circuit Court of Appeals for the Sixth Circuit in Belknap Hardware & Mfg. Co. v. Ohio River C. Co., 271 Fed. 144. The Belknap case dealt with the policy of the various Bonding Acts (of which the Miller Act is the latest refinement) and their effect upon the rights of laborers and materialmen in funds earned by contractors in default and held by the Government. Themase involved proceeds from a Government contract, the/claim of a surety who had paid laborers and materialmen under its (the surety’s) bond, and the conflicting claims of general creditors. The court, relying on and amplifying the Supreme Court’s decision in Henningsen v. United States, 208 U. S. 404 (1908), accepted the proposition that the laborers and the materialmen had no equitable lien against funds in the Government’s hands, but held that there did exist in the laborers and materialmen an “equitable priority” entitling them to preferential payment from funds in the hands of a mere stakeholder. The Circuit Court held that there was subrogation to such equitable priority, saying in part: It may have been the congressional intent to substitute this statutory bond, as a protection to laborers and mate-rialmen, in place of the rather vague obligation, which had been to some degree assumed by the United States, to look after their interests, in which case this obligation was eliminated, and after the statute, there was no such duty resting on the United States and no such right to protection remaining in the laborers. It may have been the congressional intent to give to these claimants, by this bond, an additional protection, which would become the ordinary and primary one, and usually would be sufficient, and to do this without diminishing the obligation of the government to see that there claims were paid, as far" }, { "docid": "17471581", "title": "", "text": "to constitute the fund which was withheld by the United States a security for the payment of these claims. It was further held, and it necessarily followed, that the beneficiaries of this security fund were entitled to its proceeds as against one who merely stood in the shoes of the contractor. The controversy involved arose in 1893. It is stated in the opinion that it was necessary for the United States to assume the protection of labor and materialmen in order that dishonest and reckless contractors, who did not intend to pay such claim,s,' might not obtain contracts, and thus subject Congress to importunities to make good the resulting loss. It may fairly be assumed, we think, that there was some general recognition of this moral or ethical duty resting upon the United States, and that this led to the passage of the bonding act of 1894. The policy of the act may be thought of in two ways. It may have been the congressional intent to substitute this statutory bond, as a protection to laborers and materialmen, in place of the rather vague obligation, which had been to some degree assumed by the United States, to look after their interests, in which case this obligation was eliminated, and after the statute, there was no such duty resting on the United States and no such right to protection remaining in the laborers. . It may have been the congressional intent to give to these claimants, by .this hond, an additional protection, which would become the ordinary and primary one, and usually would be sufficient, and to do this without diminishing the obligation of the government to see that these claims were paid, as far as that result could be accomplished by the funds which it retained. In that event the equitable priority of such claimants in the fund, if such priority there had been, would remain and could be enforced in the appropriate cases either directly or by subrogation. It is not necessary to consider which of these views would seem the better one, if the question were open. We" }, { "docid": "17471582", "title": "", "text": "laborers and materialmen, in place of the rather vague obligation, which had been to some degree assumed by the United States, to look after their interests, in which case this obligation was eliminated, and after the statute, there was no such duty resting on the United States and no such right to protection remaining in the laborers. . It may have been the congressional intent to give to these claimants, by .this hond, an additional protection, which would become the ordinary and primary one, and usually would be sufficient, and to do this without diminishing the obligation of the government to see that these claims were paid, as far as that result could be accomplished by the funds which it retained. In that event the equitable priority of such claimants in the fund, if such priority there had been, would remain and could be enforced in the appropriate cases either directly or by subrogation. It is not necessary to consider which of these views would seem the better one, if the question were open. We think it has been foreclosed by the decision of the Supreme Court in Henningsen v. U. S., 208 U. S. 404, 28 Sup. Ct. 389, 52 L. Ed. 547. In that case, the surety upon a bond of this kind, given pursuant to the 1894 statute, and who had been compelled to pay its surety obligation, was held entitled to'priority in the retained fund as against a general creditor of the contractor. The case was essentially different from the Prairie State Bank Case, because there the surety had taken over and completed the contract and the performance of the contractor’s obligation to the United States as the other party to the contract, and so had become entitled to the security which the United States held against the contractor; in the Henningsen Case, the contractor himself had completely performed the contract and had finished the work. • It would seem, therefore, that subrogation in the Henningsen Case could not be to any security which the United States held against the contractor; there was no such element" }, { "docid": "23237732", "title": "", "text": "equitable lien against funds in the Government’s hands, but held that there did exist in the laborers and materialmen an “equitable priority” entitling them to preferential payment from funds in the hands of a mere stakeholder. The Circuit Court held that there was subrogation to such equitable priority, saying in part: It may have been the congressional intent to substitute this statutory bond, as a protection to laborers and mate-rialmen, in place of the rather vague obligation, which had been to some degree assumed by the United States, to look after their interests, in which case this obligation was eliminated, and after the statute, there was no such duty resting on the United States and no such right to protection remaining in the laborers. It may have been the congressional intent to give to these claimants, by this bond, an additional protection, which would become the ordinary and primary one, and usually would be sufficient, and to do this without diminishing the obligation of the government to see that there claims were paid, as far as that result could be accomplished by the funds which it retained. In that event the equitable priority of such claimants in the fund, if such priority there had been, would remain and could be enforced in the appropriate cases either directly or by subrogation. It is not necessary to consider which of these views would seem the better one, if the question were open. We think it has been foreclosed by the decision of the Supreme Court in Henningsen v. U. S. [citation omitted]. In that case, the surety upon a bond of this kind [payment of laborers and materialmen], given pursuant to the 1894 statute, and who bad been compelled to pay-its surety obligation, was held entitled to priority in the retained fund as against a general creditor of the contractor. The case was essentially different from the Prairie State Bank case, because there the surety had taken over and completed the contract and the performance of the contractor’s obligation to the United States as the other party to the contract, and so" }, { "docid": "23237733", "title": "", "text": "as that result could be accomplished by the funds which it retained. In that event the equitable priority of such claimants in the fund, if such priority there had been, would remain and could be enforced in the appropriate cases either directly or by subrogation. It is not necessary to consider which of these views would seem the better one, if the question were open. We think it has been foreclosed by the decision of the Supreme Court in Henningsen v. U. S. [citation omitted]. In that case, the surety upon a bond of this kind [payment of laborers and materialmen], given pursuant to the 1894 statute, and who bad been compelled to pay-its surety obligation, was held entitled to priority in the retained fund as against a general creditor of the contractor. The case was essentially different from the Prairie State Bank case, because there the surety had taken over and completed the contract and the performance of the contractor’s obligation to the United States as the other party to the contract, and so had become entitled to the security which the United States held against the contractor; in the Henning sen case, the contractor himself had completely performed the contract and had finished the work. It would seem, therefore, that subrogation in the Henning sen case could not be to any security which the United States held against the contractor; there was no such element in the case. The surety’s claim of priority in the fund was sustained, and this was done on the stated theory of subrogation. Since there cannot be the transferal a right by sub-rogation, unless there is a right to be transferred, we think the necessary effect of the decision is to hold that the laborers and materialmen, in spite of or in addition to the giving of the bond, had an original and continuing equitable priority in the fund, and that it was this right to which the surety was subrogated. This is not stated in the opinion in very express terms, but it had been pressed upon the court (208 U. S." }, { "docid": "23237735", "title": "", "text": "407, 408, 28 Sup. Ct. 389, 52 L. Ed. 547) that there could be no such subrogation without such a right, and that there was no such right. On page 410 of 208 U. S., on page 391 of 28 Sup. Ct. (52 L. Ed. 547), the court refers to and assumes that the government, after the bond was given, was still charged with “equitable obligations to see that the laborers and supply men were paid.” We are constrained to think that the decision necessarily rests upon the existence of this right, as one entitling these claimants to priority in payment out of the fund, and therefore as entitling the surety, as their equitable as-signee by subrogation, to the same priority. If the Hmmngsen and Belknap cases remain law, the equity of the surety prevails here. The holding of the recently decided Sehmoll and Munsey cases, both supra, are not in conflict with the holdings of the earlier Henning sen and Belknap cases in relation to the facts at bar. The distinguishing characteristic of the Schmoll and Munsey cases is that both involved the right of the Government to set off its claims arising independently of the contract against a surety who had paid laborers and materialmen and claimed an equitable lien against funds in the Government’s hands. This feature is recognized expressly in Justice Jackson’s Munsey opinion, 332 U. S. 234, 240. “From Prairie State Bank v. United States, 164 U. S. 227 to American Surety Company v. Sampsell, 327 U. S. 269, we have recognized the peculiarly equitable claim of those responsible for the physical completion of building contracts to be paid from available moneys ahead of others whose claims come from the advance of money. But in all those eases, the owner was a mere stakeholder and had no rights of its own to assertP [Italics supplied.] At pages 243 and 244 of the same opinion, it is stated that: It [the surety] argues that the implication of the several contracts among government, contractor and surety was that the moneys earned under the repair contracts would be" }, { "docid": "17471583", "title": "", "text": "think it has been foreclosed by the decision of the Supreme Court in Henningsen v. U. S., 208 U. S. 404, 28 Sup. Ct. 389, 52 L. Ed. 547. In that case, the surety upon a bond of this kind, given pursuant to the 1894 statute, and who had been compelled to pay its surety obligation, was held entitled to'priority in the retained fund as against a general creditor of the contractor. The case was essentially different from the Prairie State Bank Case, because there the surety had taken over and completed the contract and the performance of the contractor’s obligation to the United States as the other party to the contract, and so had become entitled to the security which the United States held against the contractor; in the Henningsen Case, the contractor himself had completely performed the contract and had finished the work. • It would seem, therefore, that subrogation in the Henningsen Case could not be to any security which the United States held against the contractor; there was no such element in the case. The surety’s claim of priority in the fund was sustained, and this was done on the stated theory of subrogation. Since there cannot be the transfer of a right by subrogation, unless there is a right to be transferred, we think the necessary effect of the decision is to hold that the laborers and materialmen, in spite of or in addition to the giving of the bond, had an original and continuing equitable priority in the fund, and that it was this right to which the surety was subrogated. This is not stated in the opinion in very express terms, but it had been pressed upon the court (208 U. S. 407, 408, 28 Sup. Ct. 389, 52 L. Ed. 547) that there could be no such subrogation without such a right, and that there was no such right. On page 410, of 208 U. S., on page 391 of 28 Sup. Ct. (52 L. Ed. 547), the court refers to and assumes that the government, after the bond was given was" }, { "docid": "11189249", "title": "", "text": "v. United States F. & G. Co., 1908, 208 U.S. 404, 28 S.Ct. 389, 52 L.Ed. 547, accepted the proposition that the laborers and the materialmen had no equitable lien against funds in the Government’s hands, but held that there did exist in the laborers and .materialmen, an “equitable priority”, entitling them to preferential pay ment from funds in the hands of a mere stakeholder. The Circuit Court held that there was subrogation to such equitable priority, saying in part: “It may have been the congressional intent to substitute this statutory bond, as a protection to laborers and materialmen, in place of the rather vague obligation, which had been to some degree assumed by the United States, to look after their interests, in which case this obligation was eliminated, and after the statute, there was no such duty resting on the United States and no such right to protection remaining in the laborers. It may have been the congressional intent to give to these claimants, by this bond, an additional protection, which would become the ordinary and primary one, and usually would be sufficient, and to do this without diminishing the obligation of the government to see that these claims were paid, as far as that result could be accomplished by the funds which it retained. In that event the equitable priority of such claimants in the fund, if such priority there had been, would remain and could be enforced in the appropriate cases either directly or by subrogation. “It is not necessary to consider which of these views would seem the better one, if the question were open. We think it has been foreclosed by the decision of the Supreme Court in Henningsen v. U. S. [F. & G. Co.] [citation omitted]. In that case, the surety upon a bond of this kind [payment of laborers and materialmen], given pursuant to the 1894 statute, and who had been compelled to pay its surety obligation, was held entitled to priority in the retained fund as against a general creditor of the contractor. The case was essentially different from the Prairie" }, { "docid": "18801017", "title": "", "text": "a portion of contract payments withheld by the federal government. Sundberg, the general contractor, obtained a performance bond from a surety, then borrowed funds from a bank to complete the project and assigned the contract proceeds to the bank as security for the loan. Sundberg defaulted on its agreement with the government, thereby requiring the surety to complete the contract. The surety claimed priority to the retained funds pursuant to the suretyship agreement. The bank claimed priority as an assignee with an equitable lien on the unpaid contract price. The Court held that the suretyship agreement allowed the surety to be subrogated to Sund-berg’s rights. Further, by completing the contract, the surety was also entitled to be subrogated to the United States’ rights, including rights in the retained percentage since the purpose of retainage is as much to indemnify the surety as to protect the government from a breach of contract. Although the bank advanced funds so that Sundberg could perform the contract, the Court concluded that the bank did so voluntarily, and not due to any prior contractual obligation (such as a suretyship agreement) to Sundberg. Thus the bank was not entitled to subrogation. The subsequent assignment by Sundberg could not alter the surety’s rights; it could only transfer the rights that Sundberg retained. Accordingly, the Court held that the rights of a performance bond surety who completes a government contract are superior to those of a general contractor’s assignee with respect to the portion of the contract proceeds retained by the government. Henningsen v. United States Fidelity & Guar. Co., 208 U.S. 404, 28 S.Ct. 389, 52 L.Ed. 547 (1908), extended Prairie State to payment bonds. There, the general contractor performed the contract but failed to pay the laborers and materialmen, thereby forcing the surety to pay the amount of the bond. As in Prairie State, the general contractor assigned its right to receive the contract proceeds to a bank in exchange for a loan. The surety sought to recover the proceeds ahead of the bank. The Court held that the bank was not entitled to be subrogated" }, { "docid": "1389890", "title": "", "text": "surety are based on Prairie State Nat. Bank v. United States, 164 U. S. 227, 17 S. Ct. 142, 41 L. Ed. 412. That case did not involve a payment made to the contractor, but involved the reserve kept back by the United States to secure the final performance of the contract for which the surety on the bond had also bound himself. The surety having had to complete the contract claimed this reserve, which was still in the hands of the United States. The Prairie State Bank had only an invalid assignment of it. It was decided that this reserve was a security stipulated in the contract to be held by the creditor for the performance of the obligation, to which the surety became subrogated on performing the obligation just as he would be subrogated to any other security. The ease has no application to money not reserved as a security but paid over to the contractor. This reserve was also involved in Henningsen v. United States F. & G. Co., 208 U. S. 404, 28 S. Ct. 389, 52 L. Ed. 547, and Hardaway v. National Surety Co., 211 U. S. 552, 29 S. Ct. 202, 53 L. Ed. 321. In London & Lancashire Indemnity Co. v. Endres (C. C. A.) 290 F. 98, the surety performed the contract and sued to enjoin the payment of the reserve to the contractor, who, pending the suit, went into bankruptcy. The judgment for the surety was in accord with the Prairie Bank Case. In Cox v. New England Equitable Insurance Co. (C. C. A.) 247 F. 955, the reserve was involved, but had been paid over to the contractor by mistake while claims were outstanding which the surety paid. The contractor had paid »it to his hank, but it was held a preference and the bank lost it to the trustee in bankruptcy. As against the trustee it was held that the surety had the better right. None of these eases extends the surety’s rights beyond the reserve. In Columbia Digger Co. v. Sparks (C. C. A.) 227 F. 780," }, { "docid": "11189251", "title": "", "text": "State Bank Case, because there the surety had taken over and completed the contract and the performance of the contractor’s obligation to the United States as the other party to the contract, and so had become entitled to the security which the United States held against the contractor; in the Henningsen Case, the contractor himself had completely performed the contract and had finished the work. It would seem, therefore, that subrogation in the Henningsen Case could not be to any security which the United States held against the contractor; there was no such element in the case. The surety’s claim of priority in the fund was sustained, and this was done on the stated theory of subrogation. Since there cannot be the transfer of a right by subrogation, unless there is a right to be transferred, we think the necessary effect of the decision is to hold that the laborers and materialmen, in spite of or in addition to the giving of the bond, had an original and continuing equitable priority in the fund, and that it was this right to which the surety was subrogated. This is not stated in the opinion in very express terms, but it had been pressed upon the court (208 U.S. 407, 408, 28 S.Ct. 389, 52 L.Ed. 547) that there could be no such subrogation without such a right, and that there was no such right. On page 410, of 208 U.S., on page 391 of 28 S.Ct. (52 L.Ed. 547), the court refers to and assumes that the government, after the bond was given was still charged with ‘equitable obligations to see that the laborers and supply men were paid.’ We are constrained to think that the decision necessarily rests upon the existence of this right, as one entitling these claimants to priority in payment out of the fund, and therefore as entitling the surety, as their equitable assignee by subrogation, to the same priority.” If the Henningsen and Belknap cases remain law, the equity of the surety prevails here. The holding of the recently decided Schmoll and Munsey cases, both supra," }, { "docid": "4758560", "title": "", "text": "required by the contract where the contractor fails to pay his laborers and materialmen, constitute security for the purposes of subrogation. Those arguments were adopted by the Supreme Court in two cases. In Henningsen v. U. S. Fidelity & Guaranty Co., 208 U.S. 404, 28 S.Ct. 389, 392, 52 L.Ed. 547, a surety had given to the owner a bond to pay laborers and materialmen. The contractor, pending the performance of the contract, borrowed money from a bank and gave an assignment of the moneys to become due under the building contract. The contractor completed the construction but left unpaid laborers and materialmen and the surety then paid them in accordance with the terms of his bond. The surety claimed a specific right to reimbursement from the balance unpaid under the building contract. The Supreme Court upheld the surety, citing as in point Prairie State Bank v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412, where a surety’s “subrogation” was held to relate back to the execution of the original contract. Mr. Justice Brewer quoted, and expressed agreement with, the opinion of the court below which had said that the surety was “entitled to assert the equitable doctrine of subrogation”. Applying these arguments to the case at bar, it might be said that the surety here would be subrogated to any rights which the owner had against the contractor to retain the funds and also subrogated to the rights'which the laborers and materialmen had against the contractor. Armed with these two sets of rights he might be thought to be in a position better than even the owner himself since the owner had security for performance by the contractor but was owed no debt by the contractor. The surety would have not only the security but the right to recover upon the debt which it secured. If this line of argument were accepted, the surety's claim to the withheld funds would be superior to the Goverment liens. The Government liens extended only to the interest of the contractor. By hypo thesis this interest was only the equity" }, { "docid": "11189248", "title": "", "text": "Congress requiring Government contractors to furnish bond protection for laborers and suppliers create an exclusive remedy for such claimants by eliminating the possibility of a laborer or supplier acquiring an equitable lien against funds held by the United States. That position is not novel; it antedates the Schmoll and Munsey cases some thirty years, at least, having been specifically recognized, analyzed, and clarified in 1921 by the Circuit Court of Appeals for the Sixth Circuit in Belknap Hardware & Mfg. Co. v. Ohio River C. Co., 271 F. 144. The Belknap case dealt with the policy of the various Bonding Acts (of which the Miller Act is the latest refinement) and their effect upon the rights of laborers and materialmen in funds earned by contractors in default and held by the Government. The case involved proceeds from a Government contract, the claim of a surety who had paid laborers and materialmen under its (the surety’s) bond, and the conflicting claims of general creditors. The court, relying on and amplifying the Supreme Court’s decision in Henningsen v. United States F. & G. Co., 1908, 208 U.S. 404, 28 S.Ct. 389, 52 L.Ed. 547, accepted the proposition that the laborers and the materialmen had no equitable lien against funds in the Government’s hands, but held that there did exist in the laborers and .materialmen, an “equitable priority”, entitling them to preferential pay ment from funds in the hands of a mere stakeholder. The Circuit Court held that there was subrogation to such equitable priority, saying in part: “It may have been the congressional intent to substitute this statutory bond, as a protection to laborers and materialmen, in place of the rather vague obligation, which had been to some degree assumed by the United States, to look after their interests, in which case this obligation was eliminated, and after the statute, there was no such duty resting on the United States and no such right to protection remaining in the laborers. It may have been the congressional intent to give to these claimants, by this bond, an additional protection, which would become the" }, { "docid": "17471576", "title": "", "text": "which went into the work which produced the fund, the sole substantial question is whether they have any equitable lie priority in the fund as against other creditors of the contractor, loaned it money or furnished it something besides labor or matei The matter of subrogation has been argued at length, and ii of the cases cited deal primarily with that subject. We think it small pertinence. Subrogation involves three elements—a valuable r a person who owns the right, and a person who is seeking to be i stituted in that ownership. ]^f the claimants have an equitable pri| in the fund, they need no subrogation; their right is primary; j to assume the existence of a derivative right based on the prii one is to beg the question whether the latter exists. A brief refeij to the subrogation case chiefly relied upon makes this clear. Prairie State Bank v. U. S., 164 U. S. 227, 17 Sup. Ct. 142, 41 L. 412, it appeared that a public works contract had been made betweei United States and a contractor, in 1888, before the existence of statute which required a surety bond for the benefit of those who nished labor and material; but, pursuant to custom, the United S had taken from the contractor a bond with Hitchcock as surety, ditioned for the faithful performance of the building contract b] contractor. The contract also, provided that the United States, a work progressed, should make monthly payments on estimates, should retain 10 per cent, of each estimate until the completion o work, which retained percentage should be foi'feited to the U States, if the contractor made default, though the extent of the feiture was made further subject to the discretion of the departí It is, therefore, plain that the retained percentage in the hands of the United States constituted a security for faithful performance by the contractor. The contractor defaulted, and Hitchcock, the surety, in order to minimize his loss, took over the contract and finished it. Before Hitchcock’s assumption of the contract and making of advances, the bank had loaned money" }, { "docid": "23237734", "title": "", "text": "had become entitled to the security which the United States held against the contractor; in the Henning sen case, the contractor himself had completely performed the contract and had finished the work. It would seem, therefore, that subrogation in the Henning sen case could not be to any security which the United States held against the contractor; there was no such element in the case. The surety’s claim of priority in the fund was sustained, and this was done on the stated theory of subrogation. Since there cannot be the transferal a right by sub-rogation, unless there is a right to be transferred, we think the necessary effect of the decision is to hold that the laborers and materialmen, in spite of or in addition to the giving of the bond, had an original and continuing equitable priority in the fund, and that it was this right to which the surety was subrogated. This is not stated in the opinion in very express terms, but it had been pressed upon the court (208 U. S. 407, 408, 28 Sup. Ct. 389, 52 L. Ed. 547) that there could be no such subrogation without such a right, and that there was no such right. On page 410 of 208 U. S., on page 391 of 28 Sup. Ct. (52 L. Ed. 547), the court refers to and assumes that the government, after the bond was given, was still charged with “equitable obligations to see that the laborers and supply men were paid.” We are constrained to think that the decision necessarily rests upon the existence of this right, as one entitling these claimants to priority in payment out of the fund, and therefore as entitling the surety, as their equitable as-signee by subrogation, to the same priority. If the Hmmngsen and Belknap cases remain law, the equity of the surety prevails here. The holding of the recently decided Sehmoll and Munsey cases, both supra, are not in conflict with the holdings of the earlier Henning sen and Belknap cases in relation to the facts at bar. The distinguishing characteristic of the" }, { "docid": "8645400", "title": "", "text": "in reduction of the damage sustained remained. The right of Hitchcock to subrogation, therefore, would clearly entitle him when, as surety, he fulfilled the obligation of Sundberg & Company, to the government, to be substituted to the rights which the United States might have asserted against the fund.” Likewise, it may be said here that if the highway commission had been compelled to finish the work, it had the right to forfeit the amounts due on unpaid current estimates as well as the retained percentage, and the right of the casualty company to subrogation entitled it to be substituted to the right which the highway commission might have asserted against these funds. In the ease of Henningsen v. U. S. Fidelity & Guaranty Co., 208 U. S. 404, 28 S. Ct. 380, 52 L. Ed. 547, no distinction whatever was made with regard to retained percentage, but the sprety was held entitled to á prior equity on a general balance due under a contract, in preference to a bank holding an assignment from the contractor. The court, speaking through Mr. Justice Brewer, said: “Henningsen, for we may leave Clive out of consideration, entered into a contract with the United States to construct buildings. The Guaranty Company was surety on that contract. Its stipulation was not merely that the contractor should construct the buildings, but that he should pay promptly and in full all persons supplying labor and material in the prosecution of the work contracted for. He did not make this payment, and the Guaranty Company, as surety, was compelled to and did make the payment. Is its equity superior to that of one who simply loaned money to the contractor to be by him used as he saw fit, either in the performance of his building contract or in any other way? We think it is. It paid the laborers and material-men and thus released the contractor from his obligations to them, and to the same extent released the Government from all equitable obligations to see that the laborers and supply men were paid. It did this not as" }, { "docid": "4758559", "title": "", "text": "surety who has performed his undertaking is subrogated to the rights of the creditor. As Chancellor Kent said in Hayes v. Ward, 4 Johns, Ch., N.Y., 123, 130, “a surety will be entitled to every remedy which the creditor has against the principal debtor, to enforce every security, and to stand in the place of the creditor, and have his securities transferred to him, and to avail himself of those securities against the debtor.” In the instant case the question arises as to who the “creditor” is, the owner to whom the principal’s promise was made or the laborers and materialmen for whose benefit it was made, or both the owner and the laborers and materialmen. It may be plausibly argued that the owner is a creditor within the meaning of the rule as to security and that a surety who had performed his obligation would be entitled to any security that the owner held for the performance of the contractor’s obligation. It may be further plausibly argued that funds withheld by the owner, as required by the contract where the contractor fails to pay his laborers and materialmen, constitute security for the purposes of subrogation. Those arguments were adopted by the Supreme Court in two cases. In Henningsen v. U. S. Fidelity & Guaranty Co., 208 U.S. 404, 28 S.Ct. 389, 392, 52 L.Ed. 547, a surety had given to the owner a bond to pay laborers and materialmen. The contractor, pending the performance of the contract, borrowed money from a bank and gave an assignment of the moneys to become due under the building contract. The contractor completed the construction but left unpaid laborers and materialmen and the surety then paid them in accordance with the terms of his bond. The surety claimed a specific right to reimbursement from the balance unpaid under the building contract. The Supreme Court upheld the surety, citing as in point Prairie State Bank v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412, where a surety’s “subrogation” was held to relate back to the execution of the original contract. Mr." }, { "docid": "17471578", "title": "", "text": "to the contractor; the money, apparently, having been used to carry on the contract. Thereupon Hitchcock and the bank became adverse claimants to the retained percentage fund. As the creditor, the United States had two securities for the performance of the contract, one given directly by the principal upon his own property, and one given by the surety of that principal, it seems quite obvious that, when the surety was compelled to pay, he was entitled to be subrogated to the other security held by the creditor against the principal debtor; and so- the court held. Such equitable rights in the fund as the bank might have been entitled to came from its voluntary loan to the principal debtor, and hence must be subordinate to the claim of 1 lie surely, whose bond was required as a part of the original contract and who had been compelled to pay; and this, also, was held. The relative rights of generad creditors and of the laborers and materialmen, if any there were, who had given credit to the contractor were in no way involved in the case. Hitchcock was not subrogated to any such rights; he was subrogated to the United States in its right to use the retained percentage to finish the contract. Passing, thus, the subject of subrogation, we come back to what we consider the only meritorious question: Did the laborers and materialmen have any right, in analogy to a lien, which would entitle them to equitable priority over other creditors of the contractor in the distribution of the fund? Such right might arise by express contract, or by statute, or up>on general principles of equity. In this case there is neither express contract nor express statute. If the right exists, it is to be developed from some equitable considerations. Mechanic’s lien statutes evidence a general recognition of the thought that those who contribute the labor and material going into a structure should have a claim against it for what they have furnished in preference to other creditors of the builder, though the equitable distinction, between those materialmen who" } ]

[ { "docid": "22821842", "title": "", "text": "process clause sense. The statement that a liquor license is not property may have been intended just to emphasize these limitations, which appear in section 1 of the Liquor Control Act right after the statement. So we must look behind labels, cf. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 448 (2d Cir.1980); Winkler v. County of De Kalb, 648 F.2d 411, 414 (5th Cir.1981), and decide whether the plaintiffs’ license was “property” in a functional sense. Since, viewed functionally, property is what is securely and durably yours under state (or as in Goldberg federal) law, as distinct from what you hold subject to so many conditions as to make your interest meager, transitory, or uncertain, we must ask whether under Illinois law a liquor license is securely and durably the licensee’s. The license is good for one year and during that time, clearly, it is securely held, for it can be revoked only for cause, after notice and hearing, and subject to judicial review. See Ill.Rev.Stat.1981, ch. 43, ¶¶ 149, 153. These are the same conditions under which a teacher’s tenure, a form of property under the Fourteenth Amendment, can be revoked. Although the Liquor Control Act does not prescribe equivalent protections for nonrenewal, it does provide (again in section 1) that “any licensee may renew his license at the expiration thereof, provided he is then qualified to receive a license and the premises for which such renewal license is sought are suitable for such purposes .... ” These criteria for renewal are undemanding, which suggests that the Illinois legislature expected most licenses to be renewed as a matter of course. From here it is only a step to equating nonrenewal with revocation and requiring the same safeguards against arbitrary nonrenewal as the statute expressly provides against arbitrary revocation. That step was taken in City of Wyoming v. Liquor Control Comm’n of Illinois, 48 Ill.App.3d 404, 409, 6 Ill.Dec. 258, 262, 362 N.E.2d 1080, 1084 (1977): “it could not have been the legislative intent that a local liquor control commissioner be able to easily avoid the application of" } ]

[ { "docid": "7599279", "title": "", "text": "POSNER, Circuit Judge. These appeals are from the dismissal, on the defendants’ motion for summary judgment, of a suit under section 1 of the Civil Rights Act of 1871 (now 42 U.S.C. § 1983) against Chicago’s (former) mayor and liquor control commissioner. The suit was for damages and injunctive relief, and alleged that the operation of Illinois’ local-option liquor law, which so far as relevant here allows the voters in a precinct to vote the precinct “dry,” deprived the plaintiffs of property without due process of law, in violation of the Fourteenth Amendment. Other constitutional violations were also alleged, but these allegations, to the extent they have any substance at all, merely ring changes on the due process theme. Article IX of the Illinois Liquor Control Act, Ill.Rev.Stat.1981, ch. 43, 1111166 et seq., provides that upon the filing, at least 90 days before the next regularly scheduled general election, of a petition signed by 25 percent or more of a precinct’s registered voters, the question whether to ban the retail sale of alcoholic beverages in the precinct shall be placed on the ballot at the election. (Except in cities of more than 200,000 people, the electoral unit is the entire city, town, or village, rather than the individual precinct. See U 167.) If the vote is to ban, any license to sell liquor in the precinct lapses automatically 30 days after the election. The appellants in No. 83-1946 (Los Farrallones), who own a restaurant in Chicago, lost their liquor license as a result of such a referendum; the vote was 188 to 58. In No. 83-1945 (Philly’s), the appellant had not yet been issued a license when the referendum in its precinct was held, although its application for a license had been approved. The vote in this precinct was 152 to 71 to ban the sale of liquor. In Rippey v. Texas, 193 U.S. 504, 24 S.Ct. 516, 48 L.Ed. 767 (1904), the Supreme Court, in an opinion by Justice Holmes, rejected a claim that an Alabama law similar to the local-option provision in the Illinois Liquor Control Act denied" }, { "docid": "9334424", "title": "", "text": "area. Scioto Trails, 462 N.E.2d at 1391; Rickard, 504 N.E.2d at 729. The “particular premises” law, by contrast, allows the voters to totally revoke the license. The defendants argue that due process is satisfied by the requirement that a holder must be found to have violated a liquor law before a revocation referendum can be held. The problem with this argument is the lack of proportionality. The severity of the violation is completely unrelated to the possibility of a revocation referendum. The Ohio law allows the voters to subject a licensee to revocation simply because it is disliked, while a more popular licensee can escape revocation despite more frequent and more severe violations. Here, the state concluded that Brookpark deserved no penalty whatsoever for its violation, but Brookpark still was subjected to a revocation referendum. Brookpark alleges that a nearby establishment has been found to have violated the state liquor laws six times since 1981, but has never had its license put on the ballot. We agree with the reasoning of the courts in Philly’s and Kozubowski that such arbitrary targeting violates a licensee’s due process rights. We therefore hold that the “particular premises” local option provisions of Ohio Rev.Code §§ 4301.321, 4301.331, 4301.352, and 4301.-362 facially violate the Due Process Clause of the Fourteenth Amendment. IV. We also examine briefly Brook-park’s other constitutional claims. Brook-park argues that the “particular premises” local option statute violates the Equal Protection Clause of the Fourteenth Amendment by singling out certain establishments for liquor license revocation. However, private citizens, not state actors, determine which establishment’s liquor license goes on the ballot. Since all similarly situated liquor establishments are equally subject to a citizen-initiated petition drive, we agree with the district court that Brookpark failed to show any invidious state classification. We therefore affirm the dismissal of Brookpark’s equal protection claim. Brookpark also argues that the challenged sections of the Ohio liquor control law amount to a bill of attainder in violation of Article I, Section 10. In order to determine whether a statute is a bill of attainder, we must answer three inquiries: (1)" }, { "docid": "9334420", "title": "", "text": "the holder cannot complain about the state-provided deprivation procedures, however unreasonable and arbitrary, because those procedures are part of the interest that the holder knowingly obtained. While this argument has some superficial appeal, the Supreme Court has explicitly rejected it. [I]t is settled that the “bitter with the sweet” approach misconceives the constitutional guarantee .... The point is straightforward: the Due Process Clause provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures. The categories of substance and procedure are distinct. Were the rule otherwise, the Clause would be reduced to a mere tautology. “Property” cannot be defined by the procedures provided for its deprivation any more than can life or liberty. The right to due process “is conferred, not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in [public] employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985) (emphasis added; citations omitted). An Ohio liquor licensee holds a substantial and valuable interest and has a claim to its continuation under state law. Accordingly, we hold that a holder of an Ohio liquor license has a property interest protected under the Due Process Clause. Therefore, the state must accord a liquor licensee due process before revoking the license. We must next determine whether the Ohio “particular premises” local option statute provides due process. We conclude that it does not. The fundamental problem with the Ohio “particular premises” law is the arbitrariness inherent in a referendum. In Philly’s v. Byrne, 732 F.2d 87 (7th Cir.1984), the court found that Illinois’ local option liquor law did not violate the Due Process Clause. The law was a constitutional delegation of legislative power because [t]he voters must shut down all the retail liquor outlets in the precinct in order to shut down one.... This means not only that the licensee who is disliked is protected to some" }, { "docid": "15166747", "title": "", "text": "3099, 3106, 87 L.Ed.2d 114 (1985). Joyce argues that the evidence does not support the plaintiff’s equal protection claim. Joyce attacks the equal protection claim on the grounds that the plaintiff has failed to establish the requisite nexus between Joyce’s acts and the police harassment. Joyce maintains no competent evidence exists to support the allegation that Joyce directed the police to harass the plaintiff and his customers. The court agrees. Since Joyce has discharged his burden on this motion with regard to the equal protection claim by showing the absence of a genuine issue of material fact, see Celotex, 106 S.Ct. at 2554, and since the plaintiff has failed to introduce any evidence in response to this motion, the court grants Joyce summary judgment on the equal protection claim. With regard to the due process claim, Joyce argues that the plaintiff could not have been deprived of due process when his liquor-license application for The Keyes was delayed because the plaintiff’s interest in initially obtaining a liquor license was not a protectable property interest within the meaning of the fourteenth amendment. In support of this position, Joyce cites a string of Illinois eases which state that under Illinois law a liquor license is a “privilege,” not a “property right.” See Memorandum in Support of Joyce’s Motion for Summary Judgment at 1. The Seventh Circuit, however, in Reed v. Village of Shorewood, 704 F.2d 943, 948 (7th Cir.1983) stated that such labels are not conclusive for purposes of fourteenth amendment analysis. In Reed, the court held that a liquor licensee had a property interest when his license was up for renewal as well as in instances of revocation. See Reed v. Village of Shorewood, 704 F.2d 943, 949 (7th Cir.1983). But the court in Reed did not address the question of whether an applicant for a liquor license has a property interest for purposes of the fourteenth amendment. After careful consideration of Reed and local law, the court concludes that an applicant does have such a property interest. Prior to Reed, Illinois courts had uniformly held that an applicant for a" }, { "docid": "7599280", "title": "", "text": "the precinct shall be placed on the ballot at the election. (Except in cities of more than 200,000 people, the electoral unit is the entire city, town, or village, rather than the individual precinct. See U 167.) If the vote is to ban, any license to sell liquor in the precinct lapses automatically 30 days after the election. The appellants in No. 83-1946 (Los Farrallones), who own a restaurant in Chicago, lost their liquor license as a result of such a referendum; the vote was 188 to 58. In No. 83-1945 (Philly’s), the appellant had not yet been issued a license when the referendum in its precinct was held, although its application for a license had been approved. The vote in this precinct was 152 to 71 to ban the sale of liquor. In Rippey v. Texas, 193 U.S. 504, 24 S.Ct. 516, 48 L.Ed. 767 (1904), the Supreme Court, in an opinion by Justice Holmes, rejected a claim that an Alabama law similar to the local-option provision in the Illinois Liquor Control Act denied due process of law by subjecting the liquor seller’s property rights to the whim of the electorate. Rippey has never been overruled; and it is cited with approval in several modern cases. See Salsburg v. Maryland, 346 U.S. 545, 552 n. 7, 74 S.Ct. 280, 284 n. 7, 98 L.Ed. 281 (1954); Griffin v. Board of Supervisors, 322 F.2d 332, 342 and n. 25 (4th Cir.1963), rev’d, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964); Graham v. State, 45 Ala.App. 79, 224 So.2d 905 (1969), app. dismissed, 396 U.S. 279, 90 S.Ct. 567, 24 L.Ed.2d 466 (1970); McDonald v. Brewer, 295 F.Supp. 1135, 1139 (N.D.Ala.1968); Hall v. St. Helena Parish School Bd., 197 F.Supp. 649, 658 (E.D.La.1961) (three-judge court) (per curiam), aff’d mem., 368 U.S. 515, 82 S.Ct. 529, 7 L.Ed.2d 521 (1962). Yet it would be risky to rest decision on Rippey alone, especially when the only modern cases upholding local-option laws against due process challenges (Illinois cases by the way) do so, as we shall see, on the ground rejected in" }, { "docid": "20862762", "title": "", "text": "state a claim under Fed.R.Civ.P. 12(b)(6). The plaintiff’s due process attack encompassed both procedural and substantive dimensions. This review initially addresses the plaintiffs procedural due process argument that the Ohio local option statutes facially empower local voters to deprive persons of property without due process because no hearing is afforded prior to the taking of the owner’s alleged property interest in the use of its liquor permit in a particular locality. See Brookpark Entertainment, Inc. v. Taft, 951 F.2d 710, 716 (6th Cir.1991) (“[A] holder of an Ohio liquor license has a property interest protected under the Due Process Clause. Therefore, the state must accord a liquor licensee due process before revoking the license.”) (note omitted), cert. denied, 506 U.S. 820, 113 S.Ct. 68, 121 L.Ed.2d 35 (1992). Contrary to the plaintiffs contention, however, the failure of Ohio law to provide notice and a hearing prior to the alleged “taking” (consequent to an adverse local option election) of a person’s privilege pursuant to an ODLC-issued liquor license to market one or more varieties of alcoholic beverages in a particular precinct or residence district does not violate due process, because no notice or opportunity to be heard need proceed any legislative action of general applicability. United States v. Florida East Coast Railway Co., 410 U.S. 224, 244-45, 93 S.Ct. 810, 820-21, 35 L.Ed.2d 223 (1973); Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445, 36 S.Ct. 141, 142, 60 L.Ed. 372 (1915); Nasierowski Bros. Inv. v. Sterling Heights, 949 F.2d 890, 895-96 (6th Cir.1991); accord, Pro-Eco v. Bd. of Comm’rs of Jay County, 57 F.3d 505, 513 (7th Cir.), cert. denied, — U.S. -, 116 S.Ct. 672, 133 L.Ed.2d 522 (1995). A local option referendum of general applicability produces a legislative rather than an adjudicative public policy decision. Philly’s v. Byrne, 732 F.2d 87, 92-93 (7th Cir.1984). Accordingly, no person actually or potentially adversely impacted by a local option election of a type presently authorized by Ohio law possesses any procedural due process right to notice and a hearing prior to implementation of the referendum’s dictates. Next, the" }, { "docid": "3615426", "title": "", "text": "MEMORANDUM OPINION AND ORDER ASPEN, District Judge: Plaintiff 87 South Rothschild Liquor Mart, Inc. (“Liquor Mart”) seeks declaratory and injunctive relief against Walter S. Kozubowski, City Clerk of the City of Chicago (“Kozubowski”), the Board of Election Commissioners of the City of Chicago (“Election Board”), Richard M. Daley, May- or of the City of Chicago (“Daley”), the Local Liquor Control Commission of the City of Chicago (“Chicago Liquor Control Commission”), and the State of Illinois Liquor Control Commission (“State Liquor Control Commission”). The genesis of Liquor Mart’s complaint is the Illinois legislature’s 1989 amendment to Article IX of the Illinois Liquor Control Act. The pertinent statute (with emphasis supplied to language added by the 1989 amendment) reads: When any legal voters of a precinct in any city, village or incorporated town of more than 200,000 inhabitants, as determined by the last preceding Federal census, desire to pass upon the question of whether the sale at retail of alcoholic liquor shall be prohibited in the precinct or at a particular licensed establishment within the precinct, they shall, at least 90 days before an election, file in the office of the clerk of such city, village or incorporated town, a petition directed to the clerk, containing the signatures of not less than 25% of the legal voters registered with the board of election commissioners or county clerk, as the case may be, from the precinct. Provided, however, that when the petition seeks to prohibit the sale at retail of alcoholic liquor at a particular street address of a licensed establishment within the precinct the petition shall contain the signatures of not less than ^0% of the legal voters requested from that precinct. The petition shall request that the proposition “Shall the sale at retail of alcoholic liquor be prohibited in (or at).?” be submitted to the voters of the precinct at the next ensuing election at which such proposition may be voted upon. The submission of the question to the voters of such precinct at such election shall be’ mandatory when the petition has been filed in proper form with the clerk." }, { "docid": "13883701", "title": "", "text": "Inc. v. Byrne, 732 F.2d 87 (7th Cir.1984). Moratorium ordinances eventually reduce the number of liquor outlets in a neighborhood; Marusic acknowledges that this is a permissible governmental objective, which in light of the twenty-first amendment no one could doubt. National Paint & Coatings Ass’n v. Chicago, 45 F.3d 1124 (7th Cir.1995), adds that business regulation satisfying the “rational basis” standard under the equal protection clause also satisfies the due pro cess clause of the fourteenth amendment. Instead of closing Marusie’s business, the City quit issuing new licenses while grandfathering existing firms. Liquor outlets will diminish by attrition. If the City could shut down liquor businesses entirely, then the “kinder, gentler” regulation accomplished by a freeze plus a grandfather clause must be permissible. That covers the waterfront; Marusic loses. Marusic depicts his license as a kind of property that the state must respect, and the privileges of which it may not change. This misunderstands the nature of a “license” in a system of regulation. A license is nothing but a promise by the issuing body not to interfere in business conducted according to its terms. River Park, [Inc. v. Highland Park, 23 F.3d 164 (7th Cir.1994) ] at 166; Toulabi v. United States, 875 F.2d 122 (7th Cir.1989). Not since legislatures responded to the Dartmouth College case by reserving the right to alter the terms of charters and licenses have courts treated them as substantive bars to regulation. A license, as a species of property, may require the government to afford appropriate process. But the people, directly or through their legislature, may alter the substantive terms of the promise not to interfere in private economic transactions. See Philly’s, the Original Philadelphia Cheese Steak, Inc. v. Byrne, 732 F.2d 87 (7th Cir.1984) (holding that Illinois may allow each voting precinct to decide whether to permit the sale of liquor, even though a decision to “go dry” may extinguish rights held under licenses and even though customers may continue to buy liquor in neighboring precincts). National Paint, 45 F.3d at 1129 (emphasis in original). The case we cited, Philly’s, is especially apropos" }, { "docid": "9334423", "title": "", "text": "That provision was recently invalidated on due process grounds. 87 South Rothschild Liquor Mart v. Kozubowski, 752 F.Supp. 839 (N.D.Ill.1990). The Kozubowski court adopted the reasoning of Philly’s and added: [T]here is, as Judge Posner noted in Philly’s, no criterion for peering beneath the voters’ decisionmaking. But when voters pointedly single out a particular licensee, and do not target other licensees in the same precinct, the risk is no more and no less than that they are “gangpng] up to drive out of business a seller of liquor whom they disliked for reasons unrelated to any plausible public interest.” This is precisely the kind of capricious action that the due process of law provisions in the Constitution are designed to prevent. Id. at 842 (quoting Philly’s, 732 F.2d at 92). Finally, we note that the Ohio Court of Appeals, in upholding the Ohio local option law against due process challenges, has twice stated in dicta that a licensee might have a due process claim if the license could not be transferred out of the dry area. Scioto Trails, 462 N.E.2d at 1391; Rickard, 504 N.E.2d at 729. The “particular premises” law, by contrast, allows the voters to totally revoke the license. The defendants argue that due process is satisfied by the requirement that a holder must be found to have violated a liquor law before a revocation referendum can be held. The problem with this argument is the lack of proportionality. The severity of the violation is completely unrelated to the possibility of a revocation referendum. The Ohio law allows the voters to subject a licensee to revocation simply because it is disliked, while a more popular licensee can escape revocation despite more frequent and more severe violations. Here, the state concluded that Brookpark deserved no penalty whatsoever for its violation, but Brookpark still was subjected to a revocation referendum. Brookpark alleges that a nearby establishment has been found to have violated the state liquor laws six times since 1981, but has never had its license put on the ballot. We agree with the reasoning of the courts in Philly’s" }, { "docid": "3615433", "title": "", "text": "to single out a specific liquor seller to shut down. Whatever safeguard is present when voters may only act to prohibit liquor sales precinct-wide is now missing. As such, amended paragraph 167 represents a violation of Liquor Mart’s due process rights, and we hold it unconstitutional. Defendants cite to an Illinois appellate court decision upholding the right of precinct voters to revoke the liquor license of the only licensee in the precinct. Ole, Ole, Inc. v. Kozubowski, 187 Ill.App.3d 277, 134 Ill.Dec. 895, 898, 543 N.E.2d 178, 181 (1st Dist.1989). They claim that “[tjhere is no difference in fact between voting a precinct dry that contains only one liquor establishment, and voting a particular location dry.” Defendants’ Memorandum at 12. The legal difference, however, is that one maneuver is constitutional, and the other is unconstitutional. In Ole, Ole, there is, as Judge Posner noted in Philly’s, no criterion for peering beneath the voters’ decisionmaking. Philly's, 732 F.2d at 92. But when voters pointedly single out a particular licensee, and do not target other licensees in the same precinct, the risk is no more and no less than that they are “gang[ing] up to drive out of business a seller of liquor whom they disliked for reasons unrelated to any plausible public interest.” Id. This is precisely the kind of capricious action that the due process of law provisions in the Constitution are designed to prevent. Id. II. Conclusion We grant Liquor Mart a permanent injunction prohibiting the Election Board from submitting to voters any proposition for a targeted local-option referendum based upon the amended provisions of Ill. Ann.Stat. ch. 43, para. 167. Any such proposition must be withheld or deleted from materials given to voters at the impending November 6, 1990 election. We further award Liquor Mart reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988 (1988). It is so ordered. . Defendants' briefs are styled as memoranda in support of motions to dismiss. We grant State Liquor Control Commission’s motion based on its Eleventh Amendment argument, to which Liquor Mart in its reply memorandum essentially accedes. We also find" }, { "docid": "3615434", "title": "", "text": "the same precinct, the risk is no more and no less than that they are “gang[ing] up to drive out of business a seller of liquor whom they disliked for reasons unrelated to any plausible public interest.” Id. This is precisely the kind of capricious action that the due process of law provisions in the Constitution are designed to prevent. Id. II. Conclusion We grant Liquor Mart a permanent injunction prohibiting the Election Board from submitting to voters any proposition for a targeted local-option referendum based upon the amended provisions of Ill. Ann.Stat. ch. 43, para. 167. Any such proposition must be withheld or deleted from materials given to voters at the impending November 6, 1990 election. We further award Liquor Mart reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988 (1988). It is so ordered. . Defendants' briefs are styled as memoranda in support of motions to dismiss. We grant State Liquor Control Commission’s motion based on its Eleventh Amendment argument, to which Liquor Mart in its reply memorandum essentially accedes. We also find persuasive the argument that defendants Kozubowski, Daley, and Chicago Liquor Control Commission are \"not the real parties in interest [because] they only administer the statute.” Defendants' Memorandum at 2. We therefore dismiss the complaint as to those three defendants as well. The remaining defendant, Election Board, is the proper party in interest in this case, and we deny its motion to dismiss. . Liquor Mart presents three main arguments in its complaint. It alleges that paragraph 167: 1) infringes its due process rights; 2) constitutes a Bill of Attainder, in violation of Article 1, § 10 of the United States Constitution; and 3) represents impermissible \"special legislation,” in violation of both the federal and state constitutions. Because the due process violation issue is dispositive, we need not address Liquor Mart’s second and third arguments. . Apparently, the Illinois General Assembly when it amended paragraph 167 in 1989 was either unaware or unimpressed with Judge Pos-ner’s analysis in Philly’s v. Byrne." }, { "docid": "3615428", "title": "", "text": "Ill.Ann.Stat. ch. 43, para. 167 (Smith-Hurd 1990). On August 8, 1990, Kozubowski issued a certification to the Election Board declaring that a petition implicating Liquor Mart’s license had been filed with the City Clerk’s office. That certification would, under the amended statute, require the placement on the November 6, 1990 ballot of the following referendum: “Shall the sale at retail of alcoholic liquor be prohibited at the following address: 717 East 87th Street?” Liquor Mart alleges that such a referendum puts it in “serious and immediate peril of losing its valued license to sell liquor at the establishment it has been operating for the past 30 years.” Plaintiffs Memorandum at 4. Should voters answer the referendum’s query in the affirmative, Liquor Mart’s liquor license would be voided, and no new licenses can be issued at its location unless precinct voters act affirmatively to discontinue the prohibition. Id. at para. 174. Forty-seven months must elapse before precinct voters can reconsider any previous prohibition achieved by referendum. Id. at para. 175. On October 3, 1990, Liquor Mart filed its complaint under 42 U.S.C. § 1983 (1988). It seeks a declaration that the targeted local-option referendum provision in paragraph 167 is unconstitutional, and, further, an injunction against the operation and enforcement of the statute. Having considered the parties’ expedited briefs, we find in favor of Liquor Mart. As explained below, those portions of paragraph 167 that allow a targeted local-option referendum impermissibly infringe Liquor Mart’s right to due process of law, and are therefore unconstitutional. I. Discussion The Seventh Circuit upheld the constitutionality of paragraph 167 as it existed prior to the 1989 amendments. In Philly’s v. Byrne, 732 F.2d 87 (7th Cir.1984), the court found no denial of due process when precinct voters decided to vote the entire precinct “dry.” Id. at 91, 94. In deciding that case, however, Judge Posner compared a (constitutional) law permitting precinct-wide prohibition of liquor sales by voter referendum to a (presumably unconstitutional) law permitting targeted prohibitions by referendum. Id. at 92-93. Defendants here argue that Philly’s is a case supporting their position, and that any discussion" }, { "docid": "5047769", "title": "", "text": "their burden in opposing defendants’ motion for summary judgment as to this claim. As the Seventh Circuit explained in Doherty: “Procedural due process claims require a two step analysis. The first step requires us to determine whether the plaintiff has been deprived of a protected interest; the second requires a determination of what process is due.” 75 F.3d at 322. For purposes of deciding this motion, the Court shall assume that Clark has been deprived of a protected interest through the temporary suspension of his restaurant license. See Easter House v. Felder, 910 F.2d 1387, 1395 (7th Cir.1990) (en banc) (finding that an adoption agency had a property interest in the renewal of its license), cert. denied, 498 U.S. 1067, 111 S.Ct. 783, 112 L.Ed.2d 846 (1991); Reed v. Village of Shorewood, 704 F.2d 943, 948-49 (7th Cir.1983) (finding that a liquor license gives rise to protectible property interest). Accordingly, we turn directly to a consideration of what process is due and whether Clark has been deprived of that process. The Supreme Court has repeatedly stated that procedural due process is “a flexible concept that varies with the particular situation.” Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 984, 108 L.Ed.2d 100 (1990); see also Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (“ ‘Due process is flexible and calls for such procedural protections as the particular situation demands,’ ” quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)). While the “fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner,” Doherty, 75 F.3d at 323, the state is not always required to provide that opportunity prior to effectuating a deprivation of property. Id. Notably, in North American Cold Storage v. City of Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195 (1908), the Court upheld Chicago’s right to seize and destroy potentially contaminated food without a preseizure hearing, recognizing that the possibility of a wrongful deprivation was outweighed by the possibility of" }, { "docid": "13883702", "title": "", "text": "not to interfere in business conducted according to its terms. River Park, [Inc. v. Highland Park, 23 F.3d 164 (7th Cir.1994) ] at 166; Toulabi v. United States, 875 F.2d 122 (7th Cir.1989). Not since legislatures responded to the Dartmouth College case by reserving the right to alter the terms of charters and licenses have courts treated them as substantive bars to regulation. A license, as a species of property, may require the government to afford appropriate process. But the people, directly or through their legislature, may alter the substantive terms of the promise not to interfere in private economic transactions. See Philly’s, the Original Philadelphia Cheese Steak, Inc. v. Byrne, 732 F.2d 87 (7th Cir.1984) (holding that Illinois may allow each voting precinct to decide whether to permit the sale of liquor, even though a decision to “go dry” may extinguish rights held under licenses and even though customers may continue to buy liquor in neighboring precincts). National Paint, 45 F.3d at 1129 (emphasis in original). The case we cited, Philly’s, is especially apropos here. It involves the same business (liquor) and even greater intrusion (closing the business without compensation, as opposed to permitting the business to continue while restricting transfers). States may define the extent to which licenses are transferable: law licenses do not pass by intestate succession, and the Chicago Board of Trade does not make a market in dental-license futures. Some licenses are freely saleable; others are non-transferable; and a public body may choose, as Chicago did, to strike a middle ground. Cf. In re Tak Communications, Inc., 985 F.2d 916 (7th Cir.1993) (describing the middle ground for broadcast licenses). Seeking to turn adversity to advantage, Marusic leans heavily on Philly’s. We held that precincts may go dry by referendum, a form of direct democracy. Here the City Council has acted. Marusic insists that he was thus deprived of the “protections” offered by a referendum. He could try to persuade his neighbors to vote wet; but how could he influence the City Council, which does not even have to offer him a hearing? This argument deserves" }, { "docid": "11466184", "title": "", "text": "3955, 1989 WL 84377 (U.S.Dist.Ct., N.D.Ill. July 17, 1989) (1989 U.S.Dist. LEXIS 8609) (upholding the city's booting ordinance); Grant v. City of Chicago, 594 F.Supp. 1441, 1447-49 (N.D.Ill.1984) (pre-booting hearing not required; notice and timing of post-booting hearing constitutionally adequate). The court therefore finds that the abstention doctrine of Younger applies, and counts I and III, which contain the claims of Sapir and Gibbons respectively, are dismissed. The claims of Sapir and Gibbons are alternatively dismissed under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. As previously noted, the city’s authority to collect excess penalties is purely a matter of state law. Horn, 860 F.2d at 703 n. 7. They cannot complain about the lack of hearings prior to booting, because, aside from the fact that neither claims to have had any of his vehicles booted, no pre-depri-vation hearings are required under such circumstances. Grant, 594 F.Supp. at 1447. The availability of a post-deprivation hearing at the state level, at which plaintiffs could present any legitimate defenses they may have to the parking ticket fines, provides adequate due process. See Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Sapir’s and Hendricks’ claims that their due process rights were violated in connection with their liquor licenses must also fail because, under Illinois law, the holding of a liquor license “shall be purely a personal privilege.” Ill.Rev.Stat. ch. 43, par. 119. See also Ole, Ole, Inc. v. Kozubowski, 187 Ill.App.3d 277, 134 Ill.Dec. 895, 898, 543 N.E.2d 178, 181 (1st Dist.1989) (status as liquor licensee not afforded due process protections). Therefore, regardless of what procedures the city provides, or fails to provide, for the denial or termination of liquor licenses, Sapir’s and Hendricks’ due process rights would not be infringed. Hendricks contends that the penalties in excess of the parking fines, and the city’s demand that all fines and penalties be paid before his liquor license would be issued, violated his due process rights under the fourteenth amendment. Hendricks’ payment of the fines and penalties, however, constitutes a waiver of any procedural due process claim he may" }, { "docid": "9334422", "title": "", "text": "extent by the licensee who is liked but also that the voters cannot impose costs on liquor sellers without imposing costs on themselves— the costs of not being able to buy liquor in the precinct. Id., 732 F.2d at 92 (emphasis added). Unlike the law upheld in Philly’s, the Ohio “particular premises” statute is not a valid delegation of legislative power because it allows the voters to permanently close only those establishments that they dislike. The Seventh Circuit in Philly’s explained why such a targeted referendum would violate due process: The concern is that the voters might “gang up” to drive out of business a seller of liquor whom they disliked for reasons unrelated to any plausible public interest. This is a distinct type of arbitrary action that the requirement of fair procedure is designed to prevent, or at least make less likely to occur. Id. Five years after the decision in Philly’s, Illinois amended its liquor control laws to allow for liquor license referendums targeted at particular establishments. Ill.Ann. Stat. ch. 43, para. 167. That provision was recently invalidated on due process grounds. 87 South Rothschild Liquor Mart v. Kozubowski, 752 F.Supp. 839 (N.D.Ill.1990). The Kozubowski court adopted the reasoning of Philly’s and added: [T]here is, as Judge Posner noted in Philly’s, no criterion for peering beneath the voters’ decisionmaking. But when voters pointedly single out a particular licensee, and do not target other licensees in the same precinct, the risk is no more and no less than that they are “gangpng] up to drive out of business a seller of liquor whom they disliked for reasons unrelated to any plausible public interest.” This is precisely the kind of capricious action that the due process of law provisions in the Constitution are designed to prevent. Id. at 842 (quoting Philly’s, 732 F.2d at 92). Finally, we note that the Ohio Court of Appeals, in upholding the Ohio local option law against due process challenges, has twice stated in dicta that a licensee might have a due process claim if the license could not be transferred out of the dry" }, { "docid": "3615429", "title": "", "text": "filed its complaint under 42 U.S.C. § 1983 (1988). It seeks a declaration that the targeted local-option referendum provision in paragraph 167 is unconstitutional, and, further, an injunction against the operation and enforcement of the statute. Having considered the parties’ expedited briefs, we find in favor of Liquor Mart. As explained below, those portions of paragraph 167 that allow a targeted local-option referendum impermissibly infringe Liquor Mart’s right to due process of law, and are therefore unconstitutional. I. Discussion The Seventh Circuit upheld the constitutionality of paragraph 167 as it existed prior to the 1989 amendments. In Philly’s v. Byrne, 732 F.2d 87 (7th Cir.1984), the court found no denial of due process when precinct voters decided to vote the entire precinct “dry.” Id. at 91, 94. In deciding that case, however, Judge Posner compared a (constitutional) law permitting precinct-wide prohibition of liquor sales by voter referendum to a (presumably unconstitutional) law permitting targeted prohibitions by referendum. Id. at 92-93. Defendants here argue that Philly’s is a case supporting their position, and that any discussion in the opinion about hypothetical laws is merely dicta. Defendants’ Memorandum at 4 n. 3. Dicta or not, Judge Posner’s analysis is cogent, tightly-crafted, and persuasive. We adopt it in this case, and excerpt the pertinent passage here: Whether a particular procedure for deciding a question is “fair” depends on the nature of the abuse that the procedure is designed to prevent. Usually it is designed to prevent a mistaken application of law. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). That is not the problem here. The concern is not that the voters of a precinct might make a mistake in deciding to ban the retail sale of liquor; when they vote on the question they are voting their personal values and there is no criterion by which a court or other outsider could judge their decision correct or incorrect. The concern is that the voters might “gang up” to drive out of business a seller of liquor whom they disliked for reasons unrelated to" }, { "docid": "9334421", "title": "", "text": "U.S. 532, 541, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985) (emphasis added; citations omitted). An Ohio liquor licensee holds a substantial and valuable interest and has a claim to its continuation under state law. Accordingly, we hold that a holder of an Ohio liquor license has a property interest protected under the Due Process Clause. Therefore, the state must accord a liquor licensee due process before revoking the license. We must next determine whether the Ohio “particular premises” local option statute provides due process. We conclude that it does not. The fundamental problem with the Ohio “particular premises” law is the arbitrariness inherent in a referendum. In Philly’s v. Byrne, 732 F.2d 87 (7th Cir.1984), the court found that Illinois’ local option liquor law did not violate the Due Process Clause. The law was a constitutional delegation of legislative power because [t]he voters must shut down all the retail liquor outlets in the precinct in order to shut down one.... This means not only that the licensee who is disliked is protected to some extent by the licensee who is liked but also that the voters cannot impose costs on liquor sellers without imposing costs on themselves— the costs of not being able to buy liquor in the precinct. Id., 732 F.2d at 92 (emphasis added). Unlike the law upheld in Philly’s, the Ohio “particular premises” statute is not a valid delegation of legislative power because it allows the voters to permanently close only those establishments that they dislike. The Seventh Circuit in Philly’s explained why such a targeted referendum would violate due process: The concern is that the voters might “gang up” to drive out of business a seller of liquor whom they disliked for reasons unrelated to any plausible public interest. This is a distinct type of arbitrary action that the requirement of fair procedure is designed to prevent, or at least make less likely to occur. Id. Five years after the decision in Philly’s, Illinois amended its liquor control laws to allow for liquor license referendums targeted at particular establishments. Ill.Ann. Stat. ch. 43, para. 167." }, { "docid": "15166748", "title": "", "text": "the meaning of the fourteenth amendment. In support of this position, Joyce cites a string of Illinois eases which state that under Illinois law a liquor license is a “privilege,” not a “property right.” See Memorandum in Support of Joyce’s Motion for Summary Judgment at 1. The Seventh Circuit, however, in Reed v. Village of Shorewood, 704 F.2d 943, 948 (7th Cir.1983) stated that such labels are not conclusive for purposes of fourteenth amendment analysis. In Reed, the court held that a liquor licensee had a property interest when his license was up for renewal as well as in instances of revocation. See Reed v. Village of Shorewood, 704 F.2d 943, 949 (7th Cir.1983). But the court in Reed did not address the question of whether an applicant for a liquor license has a property interest for purposes of the fourteenth amendment. After careful consideration of Reed and local law, the court concludes that an applicant does have such a property interest. Prior to Reed, Illinois courts had uniformly held that an applicant for a liquor license does not have a constitutionally-protected right to sell liquor. See, e.g., Jacobsen v. State of Illinois Liquor Control, 97 Ill.App.3d 700, 53 Ill.Dec. 147, 149, 423 N.E.2d 531, 533 (2d Dist.1981). The first issue this court must resolve is whether Reed expanded the notion of “property” to include an applicant’s interest in initially obtaining a liquor license. The court concludes it did not. In Reed, the court concluded that the express language of Illinois Revised Statute ch. 43, ¶1¶ 149, 153 (1981) provides that a licensee has full due process rights in cases of license revocation. See Reed, 704 F.2d at 948. But unless the court found due process to be applicable to cases of renewal, the liquor control commission could avoid the due process protections for revocation simply by summarily denying an application for renewal after the license expired. Id. at 949. Since the criteria for renewal are undemanding under Illinois Revised Statute ch. 43, ¶ 119 (1982), the Reed court indicated that the Illinois legislature expected most licenses to be renewed" }, { "docid": "3615432", "title": "", "text": "on liquor sellers without imposing costs on themselves — the costs of not being able to buy liquor in the precinct. The requirement that the precinct electorate act across the board shows that the judgment the voters are asked to make is legislative rather than adjudicative in character.... And notice and opportunity for a hearing are not constitutionally required safeguards of legislative action. Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441, 445, 36 S.Ct. 141, 142, 60 L.Ed. 372 (1915); Association of Nat’l Advertisers, Inc. v. FTC, 627 F.2d 1151, 1165-66 (D.C.Cir.1979). The fact that a statute (or statute-like regulation) applies across the board provides a substitute safeguard. See United States v. Florida East Coast Ry., 410 U.S. 224, 245-46, 93 S.Ct. 810, 821, 35 L.Ed.2d 223 (1973). This safeguard is built into Illinois’ local-option provision, and supplies a practical reason for classifying the referendum procedure as legislative for purposes of this case. Philly’s, 732 F.2d at 92-93. With the 1989 amendments to paragraph 167, state law would permit a precinct’s voters to single out a specific liquor seller to shut down. Whatever safeguard is present when voters may only act to prohibit liquor sales precinct-wide is now missing. As such, amended paragraph 167 represents a violation of Liquor Mart’s due process rights, and we hold it unconstitutional. Defendants cite to an Illinois appellate court decision upholding the right of precinct voters to revoke the liquor license of the only licensee in the precinct. Ole, Ole, Inc. v. Kozubowski, 187 Ill.App.3d 277, 134 Ill.Dec. 895, 898, 543 N.E.2d 178, 181 (1st Dist.1989). They claim that “[tjhere is no difference in fact between voting a precinct dry that contains only one liquor establishment, and voting a particular location dry.” Defendants’ Memorandum at 12. The legal difference, however, is that one maneuver is constitutional, and the other is unconstitutional. In Ole, Ole, there is, as Judge Posner noted in Philly’s, no criterion for peering beneath the voters’ decisionmaking. Philly's, 732 F.2d at 92. But when voters pointedly single out a particular licensee, and do not target other licensees in" } ]

[ { "docid": "22679134", "title": "", "text": "is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). The BIA’s decision can be overturned “only where the evidence is such that a reasonable factfinder would be compelled to conclude that the requisite fear of persecution existed.” Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). This standard applies to past persecution as well. See Chand v. INS, 222 F.3d 1066, 1076 (9th Cir.2000); Korablina v. INS, 158 F.3d 1038, 1045 (9th Cir.1998). “When considering an asylum claim, we consider cumulatively the harm an applicant has suffered.” Chand, 222 F.3d at 1074. DISCUSSION Section 208(a) of the Immigration and Nationality Act (“INA”) affords the Attorney General discretion to grant political asylum to any alien deemed to be a “refugee” within the meaning of § 101(a)(42)(A) of the INA, 8 U.S.C. § 1101(a)(42)(A). See 8 U.S.C. § 1158(b)(1). “A refugee is defined as an alien unwilling to return to his or her country- of origin ‘because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’ ” Fisher v. INS, 79 F.3d 955, 960 (9th Cir.1996) (ero banc) (quoting 8 U.S.C. § 1101(a)(42)(A)). Thus, an applicant seeking asylum must establish “either past persecution or a well-founded fear of present persecution on account of [a protected ground].” Mejia-Paiz v. INS, 111 F.3d 720, 723 (9th Cir.1997) (quotation omitted). We have previously defined persecution as “ ‘the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.’ ” Ghaly, 58 F.3d at 1431 (quoting Prasad v. INS, 47 F.3d 336, 339 (9th Cir.1995)). Persecution is “an extreme concept that does not include every sort of treatment [that] our society regards as offensive.” Id. (quotation omitted). “The key question is whether, looking at the cumulative effect of all the incidents [that a] Petitioner has suffered, the treatment []he received rises to the level of persecution.”" } ]

[ { "docid": "22299419", "title": "", "text": "he “would see no problem about granting his application in the exercise of discretion.” The IJ therefore denied Shire’s application for asylum, withholding of deportation, and relief under the CAT, and ordered Shire deported to Somalia. The BIA affirmed, expressly adopting the IJ’s credibility findings. Shire filed a timely petition for review. JURISDICTION We agree with the INS that we lack jurisdiction to review the BIA’s denial of Shire’s application for asylum because the BIA’s decision was based on Shire’s alleged failure to file his asylum application within the one-year deadline set forth in 8 U.S.C. § 1158(a)(2)(B). See 8 U.S.C. § 1158(a)(3) (stating that “[n]o court shall have jurisdiction to review any determination of the Attorney General under paragraph (2)”); see also Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001) (reasoning that “we need only determine whether the IJ acted under section 1158(a)(2),” and therefore holding that we lacked jurisdiction to review the determination that the petitioner failed to file his asylum application within one year of his arrival in the United States). Nonetheless, we do have jurisdiction under 8 U.S.C. § 1252 to review Shire’s withholding and CAT claims because the one-year deadline applies only to the asylum application. See Hakeem, 273 F.3d at 816 (reviewing the IJ’s denial of withholding of removal on the merits, citing our jurisdiction to review a final order denying withholding under 8 U.S.C. § 1252(a), after concluding that we lacked jurisdiction to review asylum claim). STANDARD OF REVIEW “When the BIA deems a person to be not credible, it must ... provide specific reasons for its disbelief. Where, as here, the BIA adopts the IJ’s credibility determination, we look through the BIA’s decision to examine the IJ’s reasons for deeming the person not credible.” Bandan v. INS, 227 F.3d 1160, 1165 (9th Cir.2000) (citation omitted). The IJ’s adverse credibility determination is reviewed for substantial evidence. Singh v. Ashcroft, 362 F.3d 1164, 1168 (9th Cir.2004). The IJ’s decision may be reversed only if the evidence presented was so compelling that no reasonable factfinder could find that the petitioner was not credible. Id." }, { "docid": "22175175", "title": "", "text": "asylum application was denied and the Immigration and Naturalization Service (“INS”) issued Ali a Notice to Appear on October 1, 1998. B. The Asylum Hearing After two merits hearings, the IJ issued an oral decision on August 2, 2000 denying Ali’s petitions for asylum, withholding of removal, and relief under the CAT. Despite his positive credibility determination of Ali’s testimony, the IJ found that Ali failed to establish asylum eligibility because she failed to establish past persecution on account of a protected basis. Instead, the IJ found that the sole motivation for the murder, detention, and robbery that Ali and her family suffered “was shown to clearly be simply to steal, and in the case of the rape to take gratification from the helpless condition of the respondent.” In the alternative, the IJ denied asylum for Ali and her sons based on a finding that they were firmly resettled in Ethiopia before entering the United States because Ali “chose not to live in refugee camps” and “was never bothered by the authorities.” The IJ also denied withholding of removal and relief under the CAT for Ali and her sons. The IJ did grant Ali and her sons’ request for voluntary departure in lieu of removal, designating Somalia as the country of removal. On September 1, 2000, Ali timely appealed these denials to the BIA on behalf of herself and her two sons. The BIA affirmed the IJ without opinion on March 27, 2003. Ali then timely filed this petition for review. II. Standard of Review We review the BIA's decision on whether the petitioner has established eligibility for asylum under the substantial evidence standard. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir.2004). This standard limits reversals of BIA decisions to situations where the \"Petitioner presented evidence' so compelling that no reasonable factfinder could [fail to] find' that Petitioner has not established eligibility for asylum.\" Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). As the BIA affirmed without opinion under 8 C.F.R. § 1003.1(e)(a)," }, { "docid": "22342977", "title": "", "text": "nexus between any incident and a protected ground under the Act.” Based on its review of the record, the BIA concluded that there was “no evidence the respondent ever expressed a political opinion and no evidence to suggest that she was harmed based on any real or imputed political opinion.” As a result, the BIA denied Garcia-Milian’s asylum and withholding of removal claims. The BIA also rejected Garcia-Milian’s CAT claim. It held that the record did not establish that “it is more likely than not that the respondent will face torture by or with the acquiescence or willful blindness of an officer of the government of Guatemala.” II We have jurisdiction under 8 U.S.C. § 1252 to review final orders of removal. Li v. Holder, 656 F.3d 898, 904 (9th Cir.2011). We review the BIA’s denials of asylum, withholding of removal, and CAT relief for “substantial evidence” and will uphold a denial supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir.2010) (internal quotation marks omitted) (asylum); Pagayon v. Holder, 675 F.3d 1182, 1190 (9th Cir.2011) (internal quotation marks omitted) (withholding of removal); see Haile v. Holder, 658 F.3d 1122, 1130-31 (9th Cir.2011) (CAT relief). In order to reverse the BIA, we must determine “that the evidence not only supports [a contrary] conclusion, but compels it — and also compels the further conclusion” that the petitioner meets the requisite standard for obtaining relief. INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The agency’s “[findings of fact are conclusive unless ‘any reasonable adjudicator’ would be compelled to conclude to the contrary.” Kamalyan, 620 F.3d at 1057 (quoting 8 U.S.C. § 1252(b)(4)(B)). A We begin by considering Garcia-Milian’s challenge to the BIA’s denial of her asylum application. Applicants for asylum bear the burden of proving eligibility for asylum. 8 C.F.R. § 208.13(a). In order to carry this burden, an applicant must first establish “refugee” status, 8 U.S.C. § 1158(b)(1) (2000), by proving past persecution or well-founded fear of future persecution “on" }, { "docid": "22467682", "title": "", "text": "could present evidence of his brother’s shooting in Kenya. The BIA acknowledged that the IJ made no adverse credibility finding, but concluded that Njuguna’s fears relied on “implausible and unsupported speculation.” The BIA affirmed the IJ’s decision and denied Njuguna’s motion to re-open. Jurisdiction We have jurisdiction to review final orders of removal. 8 U.S.C. § 1252(a)(1). Jurisdiction over the order removing Njuguna arose when he timely filed a petition for review in this court. See 28 U.S.C. § 2849(a). Discussion I. Standard of Review We review for substantial evidence the BIA’s decision that an applicant has failed to establish eligibility for asylum. Nagoulko v, INS, 333 F.3d 1012, 1015 (9th Cir.2003); Molina-Morales v. INS, 237 F.3d 1048, 1050 (9th Cir.2001). Our review is limited to the administrative record underlying the BIA decision. 8 U.S.C. § 1252(b)(4)(A). Every asylum application is deemed to include a request for a withholding of removal. 8 C.F.R. § 208.3(b). We also review for substantial evidence the BIA’s determination that Njuguna has failed to meet the higher burden required for withholding of removal. Thomas v. Ashcroft, 359 F.3d 1169, 1174 (9th Cir.2004). II. Eligibility for Asylum The Attorney General may grant asylum to a “refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is one who is unwilling or unable to return to his or her native country because of past persecution, or a well-founded fear of future persecution, on account of the individual’s race, religion, nationality, membership in a particular social group, or political opinion. Id. § 1101(a)(42)(A). Njuguna claims a well-founded fear of future persecution in Kenya because of his political opinion. A well-founded fear has both subjective and objective components. Velarde v. INS, 140 F.3d 1305, 1309 (9th Cir.1998), superseded by statute on other grounds as stated in Falcon Carriche v. Ashcroft, 350 F.3d 845, 854 n. 9 (9th Cir.2003). Njuguna established the subjective component with his credible testimony. See Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir.1993). He has the burden of meeting the objective component by demonstrating a well-founded fear of persecution through credible, direct, and specific evidence. See Velarde, 140" }, { "docid": "22663341", "title": "", "text": "of future persecution. Likewise, he denied withholding of removal on the ground that Zehatye did not demonstrate a clear probability or real likelihood that she would be persecuted if she returned to Eritrea. Additionally, he found no evidence of torture to support a claim for relief under CAT. The BIA summarily affirmed and Zehatye filed this timely appeal, which challenges only the denial of asylum and withholding of removal. When the BIA summarily affirms the IJ’s decision, we review the IJ’s decision as the final agency action. Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004). The decision that an alien has not established eligibility for asylum or withholding of removal is reviewed for substantial evidence. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir.2004). Under the substantial evidence standard, “administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we must uphold the IJ’s determination if it is supported by reasonable, substantial, and probative evidence in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). III. A. Asylum Zehatye claims that she is eligible for asylum because she was persecuted in Eritrea on account of her religion. To qualify for asylum, an applicant must demonstrate that he or she has suffered past persecution or has a well-founded fear of future persecution. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(b). Specifically, an alien is eligible for asylum if he or she can show past persecution on account of [race, religion, nationality, membership in a particular social group, or political opinion]. Once past persecution is demonstrated, then fear of future persecution is presumed, and the burden shifts to the government to show, by a preponderance of the evidence, that there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution, or the applicant could avoid future persecution by relocating to another part of the applicant’s country. An applicant may also qualify for asylum by actually showing a well-founded fear of future persecution," }, { "docid": "22745617", "title": "", "text": "whether he applied for asylum within the requisite ‘reasonable period.’ ”). B. Wakkary’s Withholding of Removal Claim As noted above, asylum is a discretionary form of relief. See Cardoza-Fonseca, 480 U.S. at 424, 107 S.Ct. 1207. Therefore, even if the agency on remand determines that Wakkary’s asylum application was filed within a reasonable time and goes on to conclude on the merits that he is eligible for relief, the Attorney General retains the discretion not to grant that relief. We therefore consider Wakkary’s remaining arguments regarding his claim for withholding of removal. Wakkary submits that the BIA erred in two respects with regard to his claim for withholding of removal: first, in concluding that he had not suffered past persecution, and second, in concluding that he failed to show that future persecution was more likely than not. 1. Past persecution Persecution is “an extreme concept that does not include every sort of treatment our society regards as offensive.” Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir.2003) (internal quotation marks omitted). “[M]ere discrimination,” by itself, is not the same as persecution. Fisher v. INS, 79 F.3d 955, 962 (9th Cir.1996) (en banc). Severe and sustained discrimination, or discrimination in combination with other harms, however, may compel a finding of past persecution. See, e.g., Krotova v. Gonzales, 416 F.3d 1080, 1087 (9th Cir.2005) (granting petition for review where petitioner testified that she and her daughter were attacked in the street; her brother was beaten; a close family friend was murdered by anti-Semites; and she was sexually harassed, denied promotions and state-sponsored childcare, and unable to practice her religion because she was Jewish); Duarte de Guinac v. INS, 179 F.3d 1156, 1161-62 (9th Cir.1999) (granting petition for review where petitioner testified that during his conscripted service in the army, he was repeatedly beaten and subjected to race-based insults); Korablina v. INS, 158 F.3d 1038, 1044-45 (9th Cir.1998) (granting petition for review where petitioner testified that her Jewish coworker disappeared and her Jewish boss was fired; that she personally received threats and anti-Semitic slurs; and that she witnessed violent attacks on other Jews" }, { "docid": "22175176", "title": "", "text": "denied withholding of removal and relief under the CAT for Ali and her sons. The IJ did grant Ali and her sons’ request for voluntary departure in lieu of removal, designating Somalia as the country of removal. On September 1, 2000, Ali timely appealed these denials to the BIA on behalf of herself and her two sons. The BIA affirmed the IJ without opinion on March 27, 2003. Ali then timely filed this petition for review. II. Standard of Review We review the BIA's decision on whether the petitioner has established eligibility for asylum under the substantial evidence standard. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir.2004). This standard limits reversals of BIA decisions to situations where the \"Petitioner presented evidence' so compelling that no reasonable factfinder could [fail to] find' that Petitioner has not established eligibility for asylum.\" Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). As the BIA affirmed without opinion under 8 C.F.R. § 1003.1(e)(a), we review the IJ's decision as the final agency determination. Lopez-Alvarado v. Ashcroft, 371 F.3d 1111, 1114 (9th Cir.2004). \"We accept the Petitioner['s] testimony as true when, as here, the IJ found [her] to be credible.\" Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir.2004). III. Discussion A. The Asylum Claim To establish eligibility for asylum, the applicant must first show that she qualifies as a refugee. Immigration and Nationality Act (“INA”) § 208(b), 8 U.S.C. § 1158(b) (giving the Attorney General discretion to grant asylum to any alien deemed a “refugee”). A refugee is one “who is unable or unwilling to return to ... [her native] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). We hold that Ali has met the statutory eligibility for asylum. 1. Ali Suffered Past Persecution on Account of Political Opinion and Membership in a Particular Social Group Although the USC militia was not the ruling" }, { "docid": "20649415", "title": "", "text": "reasons for failing to file her application for asylum within one year of arrival in the United States that rise to the level of extraordinary circumstances, nor did the respondent present evidence of changed circumstances that materially affects her eligibility for asylum.” In responding to Hayek’s argument that the IJ failed to consider her corroborating evidence, the BIA stated that “the evidence to which she refers ... would not change the outcome in these proceedings.” The BIA also stated that the “country conditions information ... also does not change the outcome here.” The BIA concluded that Hayek “did not demonstrate that she experienced past persecution or torture, or that she has a well-founded fear of future persecution in Lebanon. She further has not shown that it is more likely than not that she would suffer future persecution or torture upon return to her homeland.” II. On appeal, Hayek raises two main arguments. First, she argues that she has established “changed circumstances” justifying an exception to the one-year asylum filing deadline. Second, she argues that she met her burden of proof for her withholding of removal and CAT claims. Specifically, she challenges the IJ’s failure to credit her testimony as establishing past persecution and argues that the IJ erred in not considering her corroborative evidence. In addressing these arguments, we review the decision of the BIA directly, but “[w]here the BIA deferred to or adopted the IJ’s reasons for denying [the petitioner’s] claims, we review those portions of the IJ’s decision as part of the final decision of the BIA.” Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 20 (1st Cir.2004). We conclude that we lack jurisdiction to consider Hayek’s argument about the timeliness of her asylum application, and our review of the record regarding Hayek’s withholding of removal and CAT relief claims does not compel us to reject the findings of the BIA. A. Timeliness of Hayek’s Asylum Application The government correctly argues that we have no jurisdiction to review the BIA’s decision that Hayek’s application for asylum was untimely and that the untimeliness was not excused. See 8 U.S.C. § 1158(a)(3)" }, { "docid": "22658964", "title": "", "text": "rejected the claim of changed circumstances and found Ramadan’s asylum application untimely. The IJ also rejected Ramadan’s application for withholding of removal, because she had not shown that it was “more likely than not” that she would be persecuted were she to return to Egypt. The Board of Immigration Appeals (“BIA”) summarily affirmed the IJ’s decision, and Ramadan timely filed this petition for review. II As always, “we ‘have jurisdiction to determine whether jurisdiction exists.’ ” Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir.2000) (quoting Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir.2000)). Our jurisdiction to review the agency’s denial of Ramadan’s application for withholding of removal is conferred by 8 U.S.C. § 1252(a). Hakeem v. INS, 273 F.3d 812, 816 (9th Cir.2001). The issue of our jurisdiction to review the denial of Ramadan’s asylum application is more complicated. Under 8 U.S.C. § 1158(a)(2)(B), an alien seeking asylum must file an application within one year of arrival in the United States, unless one of two statutory exceptions applies. See 8 U.S.C. § 1158(a)(2)(D) (late applications may be considered “if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application”); 8 C.F.R. § 208.4(a)(4)(i) (listing examples of “changed circumstances ... materially affecting the applicant’s eligibility for asylum”); 8 C.F.R. § 208.4(a)(5)(i)-(iv) (listing examples of “extraordinary circumstances ... directly related to the failure to meet the one-year deadline”). Ramadan argues that the IJ should have considered her asylum application because changed circumstances materially affected her eligibility for relief. Whether we can review the IJ’s determination that Ramadan had not shown such changed circumstances depends on the extent to which section 106 of the Real ID Act restores our jurisdiction. Prior to the passage of the Real ID Act, 8 U.S.C. § 1158(a)(3) precluded our review of any determination relating to the application of the one-year bar. Hakeem, 273 F.3d at 815. Section 106 of the Real ID Act of 2005 restores our jurisdiction over “constitutional" }, { "docid": "22636265", "title": "", "text": "than just threats, what matters is the will or ability to carry it out.” D. Withholding of Deportation and CAT Claims Because the IJ found that Lanza had not established past persecution or a well-founded fear of future persecution, he also found that Lanza failed to meet the more stringent requirements for withholding of deportation under 8 U.S.C. § 1231(b)(3)(A). As to the CAT claim, the IJ concluded that Lanza “had not shown by a preponderance of evidence that she would be subjected to torture by anyone.” IY. The BIA’s Determination Lanza appealed, and the BIA issued a streamlined affirmance without opinion. It reads in relevant part: “The Board affirms, without opinion, the results of the decision below. The decision below is, therefore, the final agency determination.” ANALYSIS I. Lanza’s Asylum Claim A. The Jurisdictional Bar On appeal, Lanza challenges both the IJ’s rejection of her asylum claim as untimely and his rejection of her asylum application on the merits. Where, as here, the BIA streamlines and affirms the result of the IJ’s decision without opinion, we review the IJ’s decision. See Falcon Carriche, 350 F.3d at 851. We turn first to Lanza’s challenge to the IJ’s procedural determination — that Lanza’s petition was untimely filed — and decline to consider that challenge for lack of jurisdiction. This Court generally has jurisdiction to review final orders denying asylum. See 8 U.S.C. § 1252(a)(2)(B)(ii) (2000). Our jurisdiction to review a rejection of an asylum application as untimely, however, is precluded . by statute. 8 U.S.C. § 1158(a)(3) provides that “no court shall have jurisdiction to review any determination by the Attorney General under paragraph [a](2).” Paragraph (a)(2) includes the provisions concerning whether the alien filed his or her application within a year of entry and whether “extraordinary circumstances” exist excusing an alien’s delay in filing an application. 8 U.S.C. § 1158(a)(2)(B), (D). Although Lanza argues that § 1158(a)(3)’s jurisdictional bar violates due process, this Court rejected such a challenge in Hakeem v. INS, 273 F.3d 812, 815-16 (9th Cir.2001). “[A] panel may not consider the correctness of an earlier panel’s decisions" }, { "docid": "22658963", "title": "", "text": "with some 100-120 other people in San Francisco, where she participated in a discussion about women’s liberty and role in Egypt. Id. at 1221. Shortly thereafter, Ramadan’s parents and a Mend in Egypt informed her that, because of the opinions she had expressed at the San Francisco meeting, someone in Egypt was looking for her and making threats as to what would happen if she were to return to Egypt. Id. In June 2001, Ramadan filed applications for asylum and withholding of removal, claiming that she feared returning to Egypt on the basis of the threats she had experienced both before and after her arrival in the United States. Both applications were denied by an IJ. Ramadan conceded that she failed to file her asylum application within one year of entry into the United States, as is required under 8 U.S.C. § 1158(a)(2)(B), but argued before the IJ that her application could be considered based on “changed circumstances” that materially affected her eligibility for relief. 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4. The IJ rejected the claim of changed circumstances and found Ramadan’s asylum application untimely. The IJ also rejected Ramadan’s application for withholding of removal, because she had not shown that it was “more likely than not” that she would be persecuted were she to return to Egypt. The Board of Immigration Appeals (“BIA”) summarily affirmed the IJ’s decision, and Ramadan timely filed this petition for review. II As always, “we ‘have jurisdiction to determine whether jurisdiction exists.’ ” Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir.2000) (quoting Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir.2000)). Our jurisdiction to review the agency’s denial of Ramadan’s application for withholding of removal is conferred by 8 U.S.C. § 1252(a). Hakeem v. INS, 273 F.3d 812, 816 (9th Cir.2001). The issue of our jurisdiction to review the denial of Ramadan’s asylum application is more complicated. Under 8 U.S.C. § 1158(a)(2)(B), an alien seeking asylum must file an application within one year of arrival in the United States, unless one of two statutory exceptions applies. See 8 U.S.C. § 1158(a)(2)(D)" }, { "docid": "23030346", "title": "", "text": "OPINION PER CURIAM: Herberth Noel Ayala, a native and citizen of El Salvador, petitions for review of a decision of the Board of Immigration Appeals (BIA) affirming an Immigration Judge’s denial of his applications for asylum, withholding of removal and protection under the Convention Against Torture. He alleges that, during his past service as a military officer, he investigated drug crimes, and that after he was discharged he was attacked and threatened by drug dealers he had personally arrested. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review. We review de novo questions of law, including whether a group constitutes a “particular social group” under the Immigration and Nationality Act (INA). See Perdomo v. Holder, 611 F.3d 662, 665 (9th Cir.2010). We examine the BIA’s factual findings, including whether a petitioner was persecuted on account of his membership in a “particular social group,” under the substantial evidence standard. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Santos-Lemus v. Mukasey, 542 F.3d 738, 742-43 (9th Cir.2008). To establish eligibility for asylum, an applicant must demonstrate that “race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(l)(B)(i). In this case, Ayala claims past persecution and a fear of future persecution on account of his membership in a particular social group of former military officers who suffer reprisals based on their prior prosecution of wrongdoers. Because Ayala was a former officer when the relevant incidents took place, he is not precluded from establishing a cognizable social group under the INA. Although in Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir.1991), we held “that the military is not a social group qualifying its servicemen or former servicemen for asylum eligibility,” we later recognized that former officers may be members of a cognizable social group. See Cruz-Navarro v. INS, 232 F.3d 1024, 1029 (9th Cir.2000) (“Persons who are persecuted because of their status as a former police or military officer, for example," }, { "docid": "22666802", "title": "", "text": "that his uncles and cousins still lived in Guatemala and that, during a recent call, they had told him that conditions were still dangerous. The immigration judge (IJ) denied Petitioner’s applications for cancellation of removal, asylum, and withholding of removal. The IJ found, first, that Petitioner’s mother is not a permanent legal resident of the United States, a citizen of the United States, or an otherwise “qualifying relative” under the cancellation-of-removal statutes; as a result, Petitioner could not qualify for cancellation of removal. Sec ond, the IJ denied Petitioner’s application for asylum because it was untimely filed. Finally, the IJ reviewed Petitioner’s application for withholding of removal and concluded that Petitioner had not presented evidence that he had been persecuted on account of any of the statutory reasons, that the armed conflict in Guatemala had ended, that peace accords had been signed, and that Petitioner did not face persecution upon return to Guatemala. Petitioner appealed the IJ’s decision to the BIA. The BIA dismissed the appeal, adopting, for the most part, the IJ’s reasoning. Neither the IJ nor the BIA questioned Petitioner’s credibility. JURISDICTION We lack jurisdiction to review the BIA’s determination that no “extraordinary circumstances” excused Petitioner’s untimely filing of his application for asylum. 8 U.S.C. § 1158(a)(3); Hakeem v. INS, 273 F.3d 812, 815 (2001); see also 8 U.S.C. § 1158(a)(2)(D)(excusing a late filing in “extraordinary circumstances”); 8 C.F.R. § 208.4(a)(5)(identifying events that qualify as “extraordinary circumstances”). We also lack jurisdiction to review a discretionary decision to deny cancellation of removal. 8 U'S.C. § 1252(a)(2)(B)®; 8 U.S.C. § 1229b(b)(l). However, we have jurisdiction to review the BIA’s legal determination that Petitioner is statutorily ineligible for cancellation of removal. Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144-45 (9th Cir.2002). We have jurisdiction over the petition to review the BIA’s dismissal of Petitioner’s withholding-of-removal claim. 8 U.S.C. § 1252(a). STANDARDS OF REVIEW We review for substantial evidence the BIA’s decision whether to withhold removal. Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001). We review de novo the BIA’s resolution of “purely legal questions.” Castillo-Perez v. INS, 212 F.3d 518, 523" }, { "docid": "22786837", "title": "", "text": "D.W. NELSON, Senior Circuit Judge: Afroza and Khandker Hasan, husband and wife, and native citizens of Bangladesh, petition for review of the Board of Immigration Appeals’ denial of their requests for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) found that the Hasans had failed to establish that their past persecution was on account of an enumerated ground, and therefore dismissed their claims for asylum and withholding of removal. The IJ also found that the Hasans had failed to establish that, upon their return to Bangladesh, they were more likely than not to experience torture with the consent or approval of government officials acting in their official capacity, and therefore, denied them relief under CAT. The Board of Immigration Appeals (“BIA”) affirmed the decision of the IJ without opinion. We have jurisdiction pursuant to the Immigration and Nationality Act (“INA”) § 242(a)(1), 8 U.S.C. § 1252(a)(1). We find that substantial evidence supported the IJ’s conclusion that the Hasans had not established eligibility for CAT relief. However, the IJ erred in concluding that the Hasans had not established that their past persecution was on account of political opinion. Accordingly, we grant the petition for review and reverse and remand to the BIA for further proceedings consistent with this opinion. I. Factual and Procedural History The following facts are drawn from the Hasans’ testimony at their asylum hearing, as well as their written application for asylum. Because the IJ did not make an adverse credibility finding, we accept the Hasans’ testimony as true. See Damon v. Ashcroft, 360 F.3d 1084, 1086 n. 2 (9th Cir.2004). A. The Hasans’ Experiences in Bangladesh Afroza Hasan (hereinafter “Afroza,” in order to distinguish her from her husband “Khandker”), the lead petitioner, worked as a reporter for Purnima, a local newspaper in Bangladesh. She primarily reported on women’s issues in the region in which she lived. Afroza was a member of the Bangladesh Nationalist Party (“BNP”), one of Bangladesh’s major political parties. She was also a member of Mohila Parish-ad, a women’s organization that served distressed women in the" }, { "docid": "22379257", "title": "", "text": "circumstance” that could excuse the late filing. The IJ found that the events that occurred in Egypt did not amount to past persecution, and that she had not demonstrated that it was “more likely than not” she would suffer future persecution, so as to qualify for withholding of removal or relief under the Convention Against Torture. The Board of Immigration Appeals (“BIA”) summarily affirmed, and this appeal followed. DISCUSSION I. One-Year Asylum Bar Pursuant to 8 U.S.C. § 1158(a)(2)(B), an application for political asylum is untimely if filed more than one year after the alien’s arrival in the United States. Ramadan last entered the United States on September 30, 1999, and thus had until September 30, 2000 to file her application, unless she qualified for an exception to the one-year bar. She did not file her application until sometime the following year, in June 2001. Ramadan argues she was still eligible to file an application because of “changed circumstances” that materially affected her eligibility for relief. 8 U.S.C. 1158(a)(2)(D); see also 8 C.P.R. § 208.4(a)(4)(i)(B) (such changes may include “activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk”). The IJ determined that Ramadan had failed to establish such material changes. As we have previously explained, this court is precluded from reviewing any determination about the one-year asylum bar by 8 U.S.C. § 1158(a)(3). See Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001). This clear, jurisdiction-stripping provision is muddied, however, by the REAL ID Act, which was signed into law on May 11, 2005. As relevant here, Section 106 of the Act modifies aspects of judicial review over final orders of removal. It provides: Nothing in ... any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section. 8 U.S.C. § 1252(a)(2)(D) (as amended) (emphasis added). This provision, which is effective immediately, thus restores jurisdiction" }, { "docid": "23516825", "title": "", "text": "MORRIS SHEPPARD ARNOLD, Circuit Judge Erwin Eliazar Navarijo-Barrios petitions for review of the order of the Board of Immigration Appeals (BIA) affirming an immigration judge’s decision to deny Mr. Navarijo-Barrios’s application for asylum. We affirm. Mr. Navarijo-Barrios, a native and citizen of Guatemala, who concedes his removability, claims that he is entitled to asylum in the United States because of past persecution and a well-founded fear of future persecution on account of his political opinion. We review the BIA’s factual findings, including whether a petitioner has demonstrated past persecution or a well-founded fear of future persecution, for substantial evidence. We are obligated to affirm the BIA’s conclusion that Mr. Navarijo-Barrios was not eligible for asylum unless Mr. Navarijo-Barrios shows that the evidence not only supports reversal, but compels it. See 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The attorney general is authorized to grant asylum to a “refugee,” 8 U.S.C. § 1158(b)(1), that is, as relevant here, to a person who does not want to return home “because of ... a well-founded fear of persecution on account of ... political opinion.” 8 U.S.C. § 1101(a)(42)(A). To establish such a fear, a petitioner must demonstrate that his or her fear is both subjectively genuine (for example, through credible testimony that the petitioner actually fears persecution) and objectively reasonable (for example, through “credible, direct, and specific evidence of facts” showing that “a reasonable person in [the petitioner’s] position would fear persecution if returned to the [petitioner’s] native country”). See Ghasemimehr v. INS, 7 F.3d 1389, 1390 (8th Cir.1993) (per curiam). Our examination of the record leads us to conclude that there is substantial evidence to support the BIA’s determination that Mr. Navarijo-Barrios failed to establish that he was persecuted in the past or that he has a well-founded fear of future persecution. The immigration judge determined that Mr. Navarijo-Barrios’s testimony was not credible because it was significantly inconsistent with his application for asylum, and the BIA affirmed that conclusion. Cf. Rucu-Roberti v. INS, 177 F.3d 669, 670 (8th" }, { "docid": "22034630", "title": "", "text": "Petition for review denied by published opinion. Judge SHEDD wrote the opinion, in which Judge WILKINSON and Judge KING joined. OPINION SHEDD, Circuit Judge. Ela Gandziami-Mickhou, a native and citizen of the Republic of Congo, was admitted to the United States in January 2002 as a non-immigrant student to attend Avila College in Kansas City, Missouri. After Gandziami-Mickhou failed to return to the college following the Spring 2002 semester, the Immigration and Naturalization Service (“INS”) issued a Notice to Appear, charging her as removable for failing to comply with the conditions of her visa. Gandziami-Mickhou subsequently applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). An Immigration Judge (“IJ”) denied Gandziami-Mickhou’s applications, concluding that she failed to meet her burden of proof on each of her claims. The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision under its streamlined process of review. Gandziami-Mickhou now petitions for review of the BIA’s decision, arguing primarily that the IJ violated our decision in Camara v. Ashcroft, 378 F.3d 361 (4th Cir.2004), by disregarding corroborating evidence that she submitted in her application for asylum and withholding of removal. For the reasons that follow, we deny the petition for review. I. Under the Immigration and Nationality Act (“INA”), the Attorney General has authority to confer asylum on any refugee. 8 U.S.C. § 1158(b). To qualify as a refugee, an alien must be unwilling or unable to return to her native country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). The “well-founded fear of persecution” standard contains both subjective and objective components. Chen v. INS, 195 F.3d 198, 201 (4th Cir.1999). To satisfy the subjective component, an applicant must present “candid, credible, and sincere testimony demonstrating a genuine fear of persecution.” Id. (internal quotations omitted). The objective component requires “specific, concrete facts that a reasonable person in like circumstances would fear persecution.” Id. at 202. The applicant for asylum bears the ultimate burden of proving her status as a refugee." }, { "docid": "23025365", "title": "", "text": "LEAVY, Circuit Judge. Ferida Kasnecovic, a nátive and citizen of Yugoslavia, petitions for review of a final order of the Board of Immigration Appeals (BIA) denying her applications for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (CAT). An Immigration Judge (IJ) found that Kasneeovic’s asylum application was untimely and that Kasne-covic did not establish extraordinary circumstances to excuse that untimeliness. See 8 U.S.C. § 1158(a)(2)(B), (D) (2000). As an alternative finding, the IJ denied Kasnecovie’s asylum claim on the merits, based on an adverse credibility determination. Finally, the IJ denied Kasnecovic’s petitions for withholding of removal and CAT relief. We have jurisdiction over the petition under 8 U.S.C. § 1252(a)(1). Because substantial evidence supports the IJ’s adverse credibility determination, we deny the petition as to the withholding of removal and CAT claims and dismiss the petition as to the asylum claim. STANDARD OF REVIEW We review the BIA’s decision to determine whether it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citation omitted). Where the BIA affirms an IJ’s order without opinion, we review the IJ’s order as the final agency action. Kebede v. Ashcroft, 366 F.3d 808, 809 (9th Cir.2004). Factual findings underlying the IJ’s order are reviewed for substantial evidence. Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir.2004). FACTS AND PRIOR PROCEEDINGS Kasnecovic entered the United States on December 22, 1998. At the time of entry she told the Immigration and Naturalization Service (INS) interviewer that she was born in Montenegro, Yugoslavia, and gave a specific location, including a zip code equivalent, as her permanent residence in Montenegro. She also told the interviewer that she had two relatives in the United States, an aunt, Osman Kalivo-ri, who lived in Staten Island, New York, and a sister, Dija Kasnecovic, living in Queens, New York. In December 1999, Kasnecovic applied for Temporary Protected Status (TPS), stating that she was born in Kosovo, Yugoslavia, and was a national of Kosovo Province. The INS" }, { "docid": "22160719", "title": "", "text": "was put on notice of the possibility of staying in the United States by her cousin, yet when Loho learned that her cousin was too busy to assist her, she failed to take any additional steps to avoid returning to Indonesia. We are persuaded that Loho’s two voluntary returns to her home country support the IJ’s adverse credibility finding even though she was not specifically aware of the possibility of applying for asylum. What cuts against Loho’s credibility is not that she failed to submit an asylum application during her previous visits, but that after leaving her home country for the safety of the United States, Loho took minimal steps to investigate the availability of some means of avoiding a return to the country she claims to have feared. In light of the “extremely deferential” review of an IJ’s decision that applies, see Wang v. INS, 352 F.3d 1250, 1257 (9th Cir.2003), such evidence is sufficient to support the IJ’s adverse credibility finding. See Don v. Gonzales, 476 F.3d 738, 743 (9th Cir.2007). Accordingly, we must conclude that Loho has produced insufficient evidence to compel the conclusion that she suffered past persecution or has a well-founded fear of future persecution in Indonesia. Kohli v. Gonzales, 473 F.3d 1061, 1071-72 (9th Cir.2007). III Because Loho’s asylum claim fails, she necessarily cannot satisfy the more stringent standard of proof required to demonstrate eligibility for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). Moreover, in light of the IJ’s adverse credibility finding, we are satisfied that substantial evidence supports denial of Loho’s claim under CAT. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003) (noting that relief under CAT requires a showing that “it is ‘more likely than not’ that [the petitioner] will be tortured if returned to [his native land]” (quoting 8 C.F.R. § 208.16(c)(2))); see also Farah, 348 F.3d at 1157 (noting that “[the petitioner’s] claims under the Convention Against Torture are based on the same statements ... that the BIA determined to be not credible”). rv For the foregoing reasons, the petition for review" }, { "docid": "18239930", "title": "", "text": "SELYA, Circuit Judge. The petitioner, Marlene Lisbeth Arévalo-Girón, is a Guatemalan national. She seeks judicial review of a final order of the Board of Immigration Appeals (BIA) denying her application for withholding of removal. After careful consideration, we deny the petition. The petitioner entered the United States on November 1, 1997, without inspection. Some ten years later, the Department of Homeland Security discovered her presence and initiated removal proceedings against her. See 8 U.S.C. § 1182(a)(6)(A)®; id. § 1229a(a)(2). Before the immigration judge (IJ), the petitioner conceded removability but cross-applied for asylum, withholding of removal, and protection under the United States Convention Against Torture (CAT). In support, she asserted that if returned to Guatemala, she would face persecution on account of her status as either a single woman with perceived wealth or a former “child of war.” The IJ determined that her claim for asylum was time-barred; denied withholding of removal on the ground that she had failed to demonstrate a likelihood of persecution in Guatemala on account of a statutorily protected status; and dismissed her entreaty for CAT relief because she had not shown any governmental involvement in the feared harm. The BIA affirmed the IJ’s decision. This timely petition for judicial review followed. In it, the petitioner challenges only the denial of withholding of removal. Because the BIA added its own gloss to the IJ’s reasoning, we review the two decisions as a unit. See Lopez Perez v. Holder, 587 F.3d 456, 460 (1st Cir.2009). In conducting that review, we test the agency’s factual findings, including credibility determinations, under the familiar substantial evidence rule. Morgan v. Holder, 634 F.3d 53, 56-57 (1st Cir.2011). This rule requires us to accept all factual findings that are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)) (internal quotation marks omitted). In other words, we must uphold such a finding unless the record compels a contrary conclusion. See 8 U.S.C. § 1252(b)(4)(B); Sompotan" } ]

[ { "docid": "5261982", "title": "", "text": "relative visa, which were filed at the same time. The BIA denied Petitioner’s motion to reopen. The Board ruled that the unadjudicat-ed visa petition did not establish that he was entitled to the relief he sought because his status may only be adjusted if he establishes by “clear and convincing evidence” that the marriage was entered into in good faith and not for the purpose of gaining entry to the United States. 8 U.S.C. § 1255(e)(3). Petitioner now appeals the BIA’s ruling. DISCUSSION Petitioner argues that the BIA erred by failing to defer its consideration of the motion to reopen until after the relative visa petition was adjudicated. Denial of a motion to reopen deportation proceedings on the grounds that the moving party has failed to establish a prima facie case for the relief sought is reviewed for an abuse of discretion. INS v. Doherty, 502 U.S. 314,-, 112 S.Ct. 719, 724-25, 116 L.Ed.2d 823 (1992). Petitioner relies on In re Garcia, 16 I & N Dec. 653 (BIA 1978), which held that deportation proceedings are ordinarily to be reopened when a prima facie approvable visa petition and adjustment application have been submitted. Id. at 656. It would be an abuse of discretion for the BIA to fail to follow Garcia consistently. Israel v. INS, 785 F.2d 738 (9th Cir.1986). Garcia, however, is no longer the policy of the BIA. The Immigration Marriage Fraud Amendments of 1986, Pub.L. No. 99-639,100 Stat. 3537, and the Immigration Act of 1990, Pub.L. No. 101-649,104 Stat. 4978, amended the immigration laws to require that a spouse seeking adjustment of status must either reside outside of the United States for two years or establish by clear and convincing evidence that the marriage was entered into in good faith and not for the purpose of immigrating to the United States. 8 U.S.C. §§ 1154(h), 1255(e). After these amendments, the BIA decided that it was no longer justified in assuming that an application for adjustment of status based on a marriage constituted a prima facie showing that a party moving to reopen proceedings is entitled to relief." } ]

[ { "docid": "23599705", "title": "", "text": "asylum as a refugee. She alleges that since her deportation proceedings, she has been active in an anti-Khomeini organization and would be persecuted for such conduct upon her return to Iran. The BIA found that she had not established the prima facie showing necessary to reopen proceedings. II Standard of Review It is generally stated that the BIA’s denial of a petition to reopen deportation proceedings to apply for asylum is reviewed by this court for an abuse of discretion. Hernandez-Ortiz v. INS, 777 F.2d 509, 513 (9th Cir.1985); cf. INS v. Rios-Pineda, — U.S. -, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985) (abuse of discretion standard applies to motion to reopen to petition for suspension of deportation). However, when the BIA restricts its decision, as here, to whether the alien has established a prima facie case, this is the only basis for the decision that we review. Hernandez-Ortiz, 777 F.2d at 517; see Larimi v. INS, 782 F.2d 1494, 1496 (9th Cir.1986). The determination of whether an alien has established a prima facie case that she is a refugee, i.e., has a well-founded fear of persecution, is nondiscretionary. See Hernandez-Ortiz, 777 F.2d at 518; cf Aviles-Torres v. INS, 790 F.2d 1433, 1436 (9th Cir.1986) (BIA has no discretion to deny motion to reopen where prima facie case for prohibition of deportation is established). Even where an alien qualifies as a refugee by showing a well-founded fear of persecution, the BIA may exercise some discretion in determining whether to grant asylum. Hernandez-Ortiz, 777 F.2d at 518; see Mahini v. INS, 779 F.2d 1419, 1421 (9th Cir.1986) (adverse factor of narcotics conviction permits discretionary denial of asylum). It is also true that, in a review of a motion to reopen, the BIA may exercise discretionary authority to avoid the question of whether a prima facie case of statutory eligibility is established and instead proceed to rule on the merits of the alien’s entitlement to a favorable exercise of discretion. See Hernandez-Ortiz, 777 F.2d at 517-18. However, the BIA clearly did not exercise any type of discretionary authority in this case. Its" }, { "docid": "18715821", "title": "", "text": "facie showing of the likelihood of his persecution which raised factual issues warranting a hearing if not an outright grant of relief. The new evidence includes a copy of the Salvadoran newspaper article in which he is described as a guerrilla. He also seeks to submit portions of the ACLU/America’s Watch Committee Report on Human Rights, which contain recently issued documentary evidence pertaining to males who refuse military service. Identification as a subversive, combined with refusal to join in the armed forces, would place Aviles-Torres in a group of prime targets for government retribution. This evidence was unavailable and could not have been presented for consideration at the first hearing; it was gathered after he had been erroneously deported while the first decision was on appeal. The facts alleged in the application, accompanied by corroborating documentation singling out petitioner, establish a prima facie case for withholding of deportation. The Board also improperly concluded that Aviles-Torres did not establish prima facie eligibility for asylum. Because he presented a prima facie case for withhold ing of deportation, he also satisfied the more generous “well-founded fear” standard for asylum. See Bolanos-Hernandez v. INS, 767 F.2d 1277, 1288 (9th Cir.1984). Although the Board has broad discretion in considering petitions to reopen for discretionary relief, see INS v. Rios-Pineda, 105 S.Ct. at 2101, the Board in this case failed to articulate any legitimate concerns that would justify an exercise of discretion unfavorable to the petitioner. We have held that it should do so. See Hernandez-Ortiz, 777 F.2d at 518-19. Moreover, no factors similar to those which prompted denial of the petition in Rios-Pineda appear in the record in this case. We hold that the petitioner should have the opportunity fully to establish his case and to receive thoughtful consideration of it. The BIA’s denial of reopening in view of the evidence presented was an abuse of discretion. The BIA’s denial of Aviles-Torres’ motion for reopening is reversed and the case remanded for a grant of relief by the BIA or, at its option, for remand for further proceedings before the Immigration Judge. Reversed and remanded." }, { "docid": "1712403", "title": "", "text": "with regard to Ms. Ramirez herself; she was closer to her aunt’s family than was Bolanos. Although Bolanos was not a member of Ms. Ramirez’s family, that does not detract from her claim of persecution on the basis of imputed political opinion. B. Because the Board found no reasonable possibility of persecution on any of the five statutorily impermissible bases, it rejected the petitioner’s claim for asylum and thus rejected a fortiori her claim to withholding of deportation, which requires a showing of a greater likelihood of persecution than is required to establish eligibility for asylum. We hold that Ms. Ramirez has met the standard for establishing withholding of deportation. She has shown that it is more likely than not that she will be persecuted if returned to El Salvador. In Rodriguez, the case most closely on point, the petitioner, a Salvadoran woman, alleged that several members of her family had been killed by the guerrillas in retaliation for her family's association with the government-supported rural militia. Although no threat of violence was directed specifically at her either before she initially left El Salvador or in a six month period during which she had temporarily returned to get her boy, her allegations were held to be “obviously more than enough to make a prima facie case under ‘the well-founded fear standard’ as well as the stricter ‘clear probability’ test.” Rodriguez, 841 F.2d at 871 (emphasis added). It is true, as the government points out, that the question before the court in Rodriguez was whether a prima facie case was established and not whether the Board’s conclusion was supported by substantial evidence. But in this case, Ms. Ramirez’s testimony was extensive, detailed, specific, and fully credited. Moreover, the expert testimony of Prof. Karl in this case is highly persuasive on the clear probability issue. The government did not rebut Ms. Ramirez’s evidence. The Board’s conclusion was not supported by substantial evidence. Prof. Karl identified several circumstances that would make the petitioner a particularly likely target of politically-motivated punishment, the most important being her membership in a notorious family in her village," }, { "docid": "23599709", "title": "", "text": "from the text of its decision that the BIA’s conclusion that Ghadessi had not established a prima facie case was due solely to the Board’s weighing of the quality, rather than the sufficiency, of her evidence. The BIA’s short decision emphasized that Ghadessi had not presented “any impartial, objective evidence” nor “any corroborating material independent of her own statements or those of family members or close friends.” In fact, although the BIA correctly noted that the State Department opinion was not binding upon it, the BIA never contradicted the opinion letter’s statement that Ghadessi had established a prima facie case of a well-founded fear of persecution if her allegations were regarded as true. Rather the BIA strongly indicated that it found her allegations to be untrue, or at least insufficiently corroborated by other evidence; a finding which the BIA is prohibited from making in considering a motion to reopen. Furthermore, the BIA applied the wrong standard in reviewing Ghadessi’s motion to reopen. The BIA required Ghadessi to establish a prima facie case of “a realistic likelihood of persecution” were she to return to Iran. By phrasing the test in terms of “likelihood” of persecution, the BIA was requiring Ghadessi to demonstrate the “probability” of persecution. See Garcia-Ramos, 775 F.2d at 1373 (withholding of deportation statute requires showing of a “probability” or “likelihood” of persecution). This “probability” or “likelihood” standard has been expressly rejected by this court in considering petitions for asylum. The “well-founded fear” standard applied to claims for asylum under section 208(a) of the Refugee Act, 8 U.S.C. § 1158(a), is “more generous” than the “clear probability of persecution” standard applied to petitions for mandatory withholding of deportation under section 243(h) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h). Bolanos-Hernandez v. INS, 767 F.2d 1277, 1282 (9th Cir.1984). The “well-founded fear” standard applied to claims for asylum includes a subjective and an objective component. Diaz-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir.1986); Hemandez-Ortiz, 777 F.2d at 513. An applicant satisfies the subjective component if she shows that her fear is genuine. Diaz-Escobar, 782 F.2d at 1492." }, { "docid": "22750844", "title": "", "text": "facts set forth in the motion — except for the surprise visit in 1984 — had been available to respondent- at the time of the hearing. With respect to the visit, the BIA observed that “the respondent’s visitor was admittedly a longtime friend of the respondent’s who in fact may have been paying a purely social visit.” App. to Pet. for Cert. 17a. Second, the BIA also held that the facts set forth in the motion to reopen did not show either a clear probability of persecution within the meaning of § 243(h) of the Immigration and Nationality Act (Act), 66 Stat. 214, as amended, 8 U. S. C. § 1253(h), or that respondent was eligible for asylum as a “refugee,” see 8 U. S. C. § 1101(a)(42), under § 208 of the Act, 8 U. S. C. § 1158. In support of this holding, the BIA noted that no affidavit from his brother had been offered, and that there was no satisfactory explanation of the details of respondent’s relationship with the enemies of the government or the reasons why that relationship might lead to his persecution. The BIA concluded that his conjectures about probable threats were too speculative to constitute a prima facie showing of eligibility for either asylum or withholding of deportation. When respondent petitioned for review of the order denying his motion to reopen, the Court of Appeals consolidated that petition with his pending petition to review the original order of deportation. The court affirmed the deportation order, but reversed the order denying the motion to reopen and remanded for an evidentiary hearing on the asylum and withholding of deportation claims. In support of the latter holding, the court began by noting that although the BIA has “wide discretion” to deny motions to reopen, and although such denials are normally reviewed only for “abuse of discretion,” in this case “the sole issue” was whether respondent had “presented a prima facie case for reopening.” 802 F. 2d, at 1099-1100. The court stated that “[w]hen the Board restricts its decision [refusing to reopen] to whether the alien has established" }, { "docid": "23599718", "title": "", "text": "refugees fleeing their homeland to present evidence other than their own credible testimony. . The argument that Ghadessi failed to preserve this issue on appeal is without merit. Although Ghadessi’s brief did not expressly attack the evidentiary standard applied by the BIA, she did challenge the BIA’s decision that she had failed to establish a prima facie case for asylum. We cannot review the BIA’s ultimate decision denying the existence of a prima facie case of a well-founded fear of persecution without also considering whether the standard applied to evaluate Ghadessi’s petition was the correct one. . The recent case of Larimi v. INS, 782 F.2d 1494 (9th Cir.1986), although superficially similar to the instant case, is in fact distinguishable. In Larimi, an Iranian national, who became involved in anti-Khomeini political activities subsequent to his initial deportation proceedings, subsequently sought to reopen proceedings to apply for asylum and withholding of deportation. We affirmed the BIA’s denial of the motion to reopen. Id. at 1497. The evidence alleged in support of the prima facie case by Ghadessi is far stronger than that submitted in Larimi. In Larimi, the petitioner had only a casual connection with an anti-Khomeini organization in the Bay Area and he offered only speculation that such a connection would result in his persecution if returned to Iran. Id. at 1497. Ghadessi, by contrast, has described extensive and active involvement in anti-Khomeini activities, not only participating in demonstrations but organizing them, as well as giving public interviews to criticize the Iranian regime. More importantly, Ghadessi stated that her parents had been interrogated by the Revolutionary Guards concerning her involvement in anti-Khomeini activities, with the Guards’ stating that she needed to clear her name. Finally, the State Department advisory opinion confirmed that she had shown a well-founded fear of persecution. None of these important factors were present in the Larimi case. JAMESON, District Judge, concurring. I concur in the conclusion that the evidence was sufficient to establish a prima facie case of a well founded fear of persecution and in most of Judge Beezer’s well considered opinion. I have some" }, { "docid": "23599715", "title": "", "text": "presumably based on the Department’s knowledge of the Iranian situation, stated that she has established a well-founded fear of persecution, assuming her allegations are true. Although this opinion is not binding upon the BIA, it is an important evidentiary factor to be weighed. See Zavala-Bonilla v. INS, 730 F.2d 562, 567 (9th Cir.1984) (State Department’s advisory opinion, stating that if petitioner’s allegations were true, she had a well-founded fear of persecution, was entitled to deference). This evidence may or may not be sufficient to establish Ghadessi’s eligibility for asylum after a full hearing on the merits, but it is sufficient to establish a prima facie case of a well-founded fear of persecution in order to obtain a reopening of deportation proceedings. Conclusion This case is remanded to the BIA to conduct a deportation hearing allowing the presentation of evidence on Ghadessi’s statutory eligibility for asylum and her suitability for a favorable exercise of discretion by the BIA. PETITION GRANTED. . \"All requests for political asylum are also considered applications for withholding of deportation pursuant to 8 U.S.C. § 1253(h).” Aviles-Torres v. INS, 790 F.2d 1433, 1435 (9th Cir. 1986); see also 8 C.F.R. § 208.3(b). As we hold that Ghadessi has established a prima facie case for asylum mandating reopening of proceedings, she should also be allowed to present evidence in support of a claim for prohibition of deportation. . If we were reviewing a BIA decision denying asylum after a deportation hearing, we would apply a two-part standard of review. First, we would evaluate whether there is substantial evidence of a well-founded fear of persecution, i.e., whether the alien is statutorily eligible for asylum. Second, we would determine whether the BIA abused its discretion by its ultimate decision denying asylum. Garcia-Ramos v. INS, 775 F.2d 1370, 1373 (9th Cir.1985). However, in a motion to reopen, the petitioner need only establish a prima facie showing. Although this is analogous in some ways to the statutory eligibility showing, there is no evidence in the record to review and we must accept as true the factual statements contained in the alien’s affidavit." }, { "docid": "22761558", "title": "", "text": "changed country conditions existed, Petitioners failed to demonstrate prima facie eligibility for the requested relief. AR 9. On those grounds, the BIA denied the motion. II. We review for an abuse of discretion the BIA’s denial of a motion to reopen. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008). Motions to reopen are disfavored due to the “strong public interest in bringing litigation to a close.” See INS v. Abudu, 485 U.S. 94, 107, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). They are particularly disfavored in immigration proceedings, where “every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); see Lainez-Ortiz v. INS, 96 F.3d 393, 395 (9th Cir.1996). A motion to reopen will not be granted unless the respondent establishes a prima facie case of eligibility for the underlying relief sought. See Ordonez v. INS, 345 F.3d 777, 785 (9th Cir.2003). III. As case law in this circuit makes clear, the Petitioners’ motion to reopen failed to demonstrate prima facie eligibility for the relief requested. Petitioners assert they qualify for asylum because they have a well-founded fear of persecution on account of them membership in a particular social group, specifically “returning Mexicans from the United States.” Petitioners’ evidence included a joint declaration stating their fear of returning to Mexico and relating the experience of a relative who returned to Mexico for a visit. The relative was “attacked by several delinquents,” who “told him to give them everything he had.” AR 24. Further, the declaration states that “some delinquents” broke into another relative’s house because they saw that a resident of the United States “had arrived on vacation in Mexico to visit.” AR 24-25. Finally, the declaration states that Petitioners know people who “have gone to Mexico on vacation” and were “robbed” and had “their belongings stolen and were beaten.” AR 25. In response to an order to show cause issued by this court, Petitioners argue that the standard for establishing a prima facie case in" }, { "docid": "23364376", "title": "", "text": "deportation. The BIA denied Maroufi’s motion in its entirety, and Maroufi appealed. II Maroufi asserts that the BIA erred in denying his motion to reopen. He contends that the motion should have been granted because he submitted sufficient evidence to make a prima facie showing of eligibility for asylum and a prima facie case for withholding of deportation. A. We hold that the BIA did not abuse its discretion in denying Maroufi’s motion to reopen for withholding of deportation. We are unpersuaded that Maroufi’s evidence, if believed, would prove that he faced a danger greater than any other citizen of Iran and therefore agree with the BIA’s finding that Maroufi has not met his burden of coming forward with a prima facie showing that he was eligible for withholding of deportation. It is never an abuse of discretion to deny a motion to reopen when a prima facie case for relief is not established. Maroufi asserts that he presented a sufficient “non-frivolous claim to asylum which justified the proceeding be reopened.” He is incorrect. The standard of proof required to establish a prima facie case of entitlement to withholding of deportation is proof of a “clear probability of persecution.” INS v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 2492-2501, 81 L.Ed.2d 321 (1984). While it is true that no hard and fast rule can be laid down as to what constitutes a sufficient showing of a “prima facie” case of a clear probability of persecution, Matter of Sipus, 14 I & N Dec. 229, 231 (1972), the standard demands more than the presentation of a “non-frivolous claim to asylum.” The term “prima facie” traditionally indicates a requirement of proof that will support the desired finding if evidence to the contrary is disregarded; proof sufficiently strong to suffice on its own until it is contradicted or overruled by other evidence. See, e.g., INS v. Jong Ha Wang, 450 U.S. 139, 143-44 & n. 5, 101 S.Ct. 1027, 1030-31 & n. 5, 67 L.Ed.2d 123 (1981) (per curiam) (Wang). Matter of Martinez-Romero, 18 I & N Dec. 75 (1981). In support of" }, { "docid": "22145458", "title": "", "text": "harassing actions of a segment of Armenian society bent on ethnic cleansing— actions which targeted Mgoian and her family for their prominent role as intellectuals in a small and vulnerable minority — • would induce any person so situated to have a reasonable and “well-founded fear” of persecution. In our view, no reasonable factfinder who fairly considered the evidence could have found otherwise. In addition to her application for asylum, Mgoian requested withholding of deportation. The Attorney General must withhold deportation if an alien’s “life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1253(h). To obtain withholding of deportation, the applicant must demonstrate that it is more likely than not that she will be persecuted by the government or a group that the government cannot or will not control. Mendoza Perez v. U.S. I.N.S., 902 F.2d 760, 761 (9th Cir.1990). Given the pattern of persecution closely tied to Mgoian and the ongoing harm inflicted upon Kurdish-Moslems in Armenia, we conclude that Mgoian has established that it is more likely than not that she would be persecuted were she to return to Armenia. III. In conclusion, we hold that the BIA’s denial of eligibility for asylum was not supported by substantial evidence in the record. Any reasonable factfinder would be compelled to find that Mgoian has a well-founded fear of future persecution. Moreover, Mgoian is entitled to withholding of deportation. See Vallecillo-Castillo v. INS, 121 F.3d 1287, 1240 (9th Cir.1996). We grant Mgoian’s petition for review and reverse the BIA’s decision. We REMAND the case to the BIA. The Board is directed to grant Mgoian’s petition for withholding of deportation, and, with respect to the petitioner’s asylum' application, to exercise its discretion under § 208 of the INA, 8 U.S.C. § 1158(a). . The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (\"IIRIRA”), Pub.L. No. 104-208, 110 Slat. 3009 (Sept. 30, 1996), amended by Act of Oct. 11, 1996, Pub.L. No. 104-302, 110 Slat. 3656, repealed 8 U.S.C. § 1105a (1994) and" }, { "docid": "23599704", "title": "", "text": "BEEZER, Circuit Judge: Maryam Ghadessi petitions for review of the decision of the Board of Immigration Appeals (“BIA”) denying her motion to reopen deportation proceedings to apply for asylum as a refugee under section 208(a) of the Refugee Act of 1980, 8 U.S.C. § 1158(a). The BIA denied Ghadessi’s motion on the ground that she failed to establish a prima facie case for relief. We conclude that Ghadessi has stated a prima facie case of a well-founded fear of persecution and thus we remand this matter to the BIA to reopen deportation proceedings for the presentation of evidence on her eligibility for asylum. I Background Ghadessi, a citizen of Iran, first entered the United States in 1978 as a non-immigrant student. When her student visa expired, the Immigration and Naturalization Service (“INS”) instituted deportation proceedings. In 1980, Ghadessi was found deportable by an immigration judge, and this decision was affirmed by the BIA and this court. In 1984, Ghadessi filed a motion to reopen deportation proceedings pursuant to 8 C.F.R. § 3.2 to apply for asylum as a refugee. She alleges that since her deportation proceedings, she has been active in an anti-Khomeini organization and would be persecuted for such conduct upon her return to Iran. The BIA found that she had not established the prima facie showing necessary to reopen proceedings. II Standard of Review It is generally stated that the BIA’s denial of a petition to reopen deportation proceedings to apply for asylum is reviewed by this court for an abuse of discretion. Hernandez-Ortiz v. INS, 777 F.2d 509, 513 (9th Cir.1985); cf. INS v. Rios-Pineda, — U.S. -, 105 S.Ct. 2098, 85 L.Ed.2d 452 (1985) (abuse of discretion standard applies to motion to reopen to petition for suspension of deportation). However, when the BIA restricts its decision, as here, to whether the alien has established a prima facie case, this is the only basis for the decision that we review. Hernandez-Ortiz, 777 F.2d at 517; see Larimi v. INS, 782 F.2d 1494, 1496 (9th Cir.1986). The determination of whether an alien has established a prima facie case" }, { "docid": "22750845", "title": "", "text": "government or the reasons why that relationship might lead to his persecution. The BIA concluded that his conjectures about probable threats were too speculative to constitute a prima facie showing of eligibility for either asylum or withholding of deportation. When respondent petitioned for review of the order denying his motion to reopen, the Court of Appeals consolidated that petition with his pending petition to review the original order of deportation. The court affirmed the deportation order, but reversed the order denying the motion to reopen and remanded for an evidentiary hearing on the asylum and withholding of deportation claims. In support of the latter holding, the court began by noting that although the BIA has “wide discretion” to deny motions to reopen, and although such denials are normally reviewed only for “abuse of discretion,” in this case “the sole issue” was whether respondent had “presented a prima facie case for reopening.” 802 F. 2d, at 1099-1100. The court stated that “[w]hen the Board restricts its decision [refusing to reopen] to whether the alien has established a prima facie case it is only this basis for its decision that we review.” Id., at 1100 (internal quotation omitted). The court then reasoned: “Upon motion to reopen, the Board must draw reasonable inferences from the facts in favor of the petitioner. A motion to reopen is analogous to a motion for summary judgment; each is accompanied by affidavits and other evidentiary material and may be granted if the motion presents ‘proof that will support the desired findings [of a prima facie case] . . . until it is contradicted or overruled by other evidence.’ Maroufi v. INS, 772 F. 2d 597, 599 (9th Cir. 1985). In both cases, inferences are to be drawn in favor of the party whose entitlement to further proceedings is at stake: the non-moving party under Fed. R. Civ. P. 56 and the alien seeking reopening under 8 CFR 3.2. See, e. g., U. S. v. Diebold, Inc., 369 U. S. 654, 655 (1962) (‘choice of inferences to be drawn from the subsidiary facts contained in the affidavits ." }, { "docid": "22750849", "title": "", "text": "had denied respondent’s motion to reopen, and respondent reported to us, incor rectly, that “the sole question before the Ninth Circuit was whether the Respondent had established a prima facie case of a well founded fear of persecution.” Brief in Opposition 20. Petitioner’s reply memorandum, though, eliminated any possible doubts about the issue it was asking us to resolve: “[T]he important question for present purposes [is] whether the BIA correctly found that respondent had not offered significant new evidence and had not adequately explained his previous failure to seek asylum or withholding of deportation (see 8 CFR 3.2, 208.11).” Reply Memorandum for Petitioner 2, n. 2. Thus, we granted certiorari, 480 U. S. 930 (1987), not to decide the substantive issues of what constitutes a prima facie case for establishing eligibility for asylum on the basis of a well-founded fear .of persecution, or of what standard of review applies, either initially or on motion to reopen, when the BIA rests its grant or denial of relief squarely on prima facie case grounds, but rather to determine the standard a Court of Appeals must apply when reviewing the BIA’s conclusion that an alien has not reasonably explained his failure to assert his asylum claim at the outset. II There are at least three independent grounds on which the BIA may deny a motion to reopen. First, it may hold that the movant has not established a prima facie case for the underlying substantive relief sought. The standard of review of such a denial is not before us today, as we have explained. Second, the BIA may hold that the movant has not introduced previously unavailable, material evidence, 8 CFR § 3.2 (1987), or, in an asylum application case, that the movant has not reasonably explained his failure to apply for asylum initially, 8 CFR §208.11 (1987). (The issues under the two regulations may, of course, both involve the incremental significance of whatever allegedly new evidence is introduced by the movant.) We decide today that the appropriate standard of review of such denials is abuse of discretion. Third, in cases in which" }, { "docid": "2218337", "title": "", "text": "for the relief he seeks, appellate review “is limited to an evaluation of whether the [Board’s] determination on the prima facie case showing was correct.” Id. at 805, n. 2; also 806. The Ghadessi majority reasoned that the Board does not exercise discretion when it evaluates a movant’s allegations of a well-founded fear of persecution, and therefore, abuse of discretion is not the proper standard of review. We need not decide which standard to adopt, because applying either we must affirm the Board’s determination that Etugh failed to establish a prima facie case for asylum under section 208 of the Act, and a fortiori, for withholding of deportation under section 243(h) of the Act. III. The essential elements of a prima facie case of a “well-founded fear of persecution”, needed for asylum under section 208 of the Act, can only be given concrete meaning through a process of case-by-case adjudication. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987). The Board’s general standard is “that an applicant for asylum has established a well-founded fear if he shows that a reasonable person in his circumstances would fear persecution”, Matter of Mogharrabi, Interim Dec. No. 3028, at 9 (BIA 1987). Without expressing any opinion of the Board’s general test for whether an applicant has established a well-founded fear, we conclude that in this case the Board correctly decided Etugh had not made out a prima facie case for asylum. Etugh failed to allege he would be persecuted beyond the local vicinity of his hometown, Akirika. Since deportation would not require Etugh to return to the purportedly dangerous region of Nigeria where he formerly lived, and because Etugh’s affidavits indicate he is safe from the threatening Abala faction at least in Nigeria’s capital, the Board correctly decided Etugh had not made a prima facie case for asylum under section 208. The scope of persecution Etugh alleges is not national and does not sustain his motion to reopen. See Quintanilla-Ticas v. I.N.S., 783 F.2d 955, 957 (9th Cir.1986); Diaz-Escobar v. I.N.S., 782 F.2d 1488, 1493 (9th Cir.1986). Furthermore, even" }, { "docid": "22750848", "title": "", "text": "asylum in the first instance, and although the Government had contended in the Court of Appeals that “petitioner neither offered a reasonable explanation for the belatedness of his application for asylum and withholding of deportation nor made a prima facie showing of entitlement to such relief,” Brief for Respondent in Nos. 84-7686 and 86-7075 (CA9), p. 16 (emphasis added), the Court of Appeals did not discuss, as a separate matter, the “failure to explain” ground in the BIA’s decision. The Court of Appeals’ statement that “the sole issue [in this case] is whether petitioner presented a prima facie case for reopening,” 802 F. 2d, at 1100, reveals that the court seems to have blended the two grounds into one. The petition for certiorari described this case as involving “the extent to which a reviewing court is required to defer to the BIA’s ruling on a motion to reopen deportation proceedings.” Pet. for Cert. 8. Like the Court of Appeals’ opinion, the questions presented, though, did not clearly separate the two grounds upon which the BIA had denied respondent’s motion to reopen, and respondent reported to us, incor rectly, that “the sole question before the Ninth Circuit was whether the Respondent had established a prima facie case of a well founded fear of persecution.” Brief in Opposition 20. Petitioner’s reply memorandum, though, eliminated any possible doubts about the issue it was asking us to resolve: “[T]he important question for present purposes [is] whether the BIA correctly found that respondent had not offered significant new evidence and had not adequately explained his previous failure to seek asylum or withholding of deportation (see 8 CFR 3.2, 208.11).” Reply Memorandum for Petitioner 2, n. 2. Thus, we granted certiorari, 480 U. S. 930 (1987), not to decide the substantive issues of what constitutes a prima facie case for establishing eligibility for asylum on the basis of a well-founded fear .of persecution, or of what standard of review applies, either initially or on motion to reopen, when the BIA rests its grant or denial of relief squarely on prima facie case grounds, but rather to" }, { "docid": "13163520", "title": "", "text": "have to serve in the Iranian army in the war against Iraq. They also fear that they will face persecution because of their stay in America. II. STATUTORY BACKGROUND When an alien seeks to avoid deportation because he fears political persecution, he can raise claims under either of two statutes. The first of these statutes is section 208(a) of the Refugee Act of 1980, 8 U.S.C. § 1158(a) (1982); the second is section 243(h) of the Immigration and Nationality Act, id. § 1253(h). Under section 208(a), the Attorney General may grant asylum to an, alien if he establishes a “well-founded fear of persecution.” Under section 243(h), the Attorney General must grant relief from deportation if the alien establishes a “clear probability of persecution.” Because section 243(h) raises a higher burden of proof, any alien who meets that standard automatically meets the section 208(a) standard. III. STANDARD OF REVIEW Because these petitioners invoke these provisions through motions to reopen, the government’s actions are reviewed under a more lenient abuse of discretion standard. See INS v. Rios-Pineda, — U.S. -, 105 S.Ct. 2098, 2102, 85 L.Ed.2d 452 (1985). It is clear that the INS can refuse to reopen the proceedings if the alien fails to establish a prima facie case under either of the two standards. See, e.g., Samimi v. INS, 714 F.2d 992, 995 (9th Cir.1983) (by implication). IV. ANALYSIS The INS claims that the motions to reopen were properly denied for two reasons: first, the motions failed to present any evidence that was not available at the time of the earlier hearing; second, the motion did not present a prima facie case for either asylum or withholding of deportation. The second of these arguments is sufficient for our decision. In evaluating petitioners’ claims, we must remember that petitioners cannot rely on “speculative conclusions or vague assertions.” Maroufi v. INS, 772 F.2d 597, 599 (9th Cir.1985). They must allege specific facts that illuminate the hardships they face rather than the difficulties of their entire nation. See id. Even petitioners admit that being drafted to serve in the Iranian army does not" }, { "docid": "13828425", "title": "", "text": "OPINION JOHN K. BUSH, Circuit Judge. In this immigration case, Maribel Trujillo Diaz petitions for review of an order denying her motion to reopen removal proceedings. The United States Board of Immigration Appeals (“BIA”) ruled that Trujillo Diaz failed to establish a prima facie case of eligibility for asylum or withholding of removal under the Immigration and Nationality Act (“INA” or “Act”) because she failed to show that she would be singled out individually for persecution based on her family membership. The BIA reiterated this finding in ruling that Trujillo Diaz failed to establish a prima facie case of eligibility for protection under the Convention Against Torture. Because the BIA failed to credit the facts stated in Trujillo Diaz’s declarations, and this error undermined its conclusion as to the sufficiency of Trujillo Diaz’s prima facie evidence, we hold that the BIA abused its discretion. We further hold that the BIA abused its discretion in summarily rejecting Trujillo Diaz’s argument that she could not safely relocate internally in Mexico for purposes of showing a prima facie ease of eligibility for relief under the Convention Against Torture. Thus, we vacate the order of the BIA and remand for further proceedings consistent with this opinion. • I Petitioner Trujillo Diaz is a Mexican citizen who entered the United States in February 2002. She was apprehended by Immigration and Customs Enforcement (“ICE”) in 2007 and placed in removal proceedings. On July 11, 2012, Trujillo Diaz had a merits hearing in her immigration proceeding. She sought asylum, withholding of removal under the INA, withholding of removal under the Convention Against Torture, and voluntary departure. During her hearing, Trujillo Diaz testified that she feared for her safety in Mexico because she believed the drug cartel, La Familia, would seek revenge against her and her family for her brother’s refusal to work for them and his subsequent fleeing to the United States. The immigration judge found that Trujillo Diaz’s asylum application was untimely filed, rendering her ineligible for asylum and requiring her claim to be assessed under the higher “clear probability of persecution” standard for withholding of" }, { "docid": "2218340", "title": "", "text": "asylum under section 208 of the Act, or as an alien entitled to withholding of deportation under section 243(h) of the Act, is questionable since both sections afford relief only to those who are threatened “on account of race, religion, nationality, membership in a particular social group, or political opinion”. See section 243(h)(1); section 208 (referencing section 101(a)(42)(A)). Even if the affidavit filed with Etugh’s brief to this court is evidence that the threat to him is religiously motivated, the local scope of that threat defeats his prima facie case for asylum. IV. Because we agree with the Board’s decision that Etugh failed to establish a prima facie case for the “well-founded fear of persecution” required for relief under section 208(a), we also agree that Etugh’s allegations did not amount to a prima facie case for withholding of deportation under section 243(h). Whereas a prima facie case under § 208(a) must show a “well-founded fear of persecution”, withholding of deportation under § 243(h) requires the more difficult showing of a “clear probability of persecution”. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Since Etugh failed to bear the lesser burden of alleging a “well-founded fear of persecution”, he also has failed to allege a “clear probability of persecution” in Nigeria. V. By our decision on review, we preclude a further hearing on Etugh’s asylum application. This, however, does not violate Etugh’s constitutional right of Due Process guaranteed by the Fifth Amendment. When an alien has made a motion to reopen his deportation proceedings to obtain discretionary relief such as asylum under section 208, the Board clearly has discretion to deny the motion to reopen, even if the alien has made out a prima facie case for relief. Abudu, 108 S.Ct. at 912; LN.S. v. Jong Ha Wang, 450 U.S. 139, 144, n. 5, 101 S.Ct. 1027, 1030-31, n. 5, 67 L.Ed.2d 123 (1981). See 8 C.F.R. § 3.2. If the Board chooses to exercise its discretionary power to deny reopening after a mov-ant establishes a prima facie case for asylum, due process does not require" }, { "docid": "23599710", "title": "", "text": "likelihood of persecution” were she to return to Iran. By phrasing the test in terms of “likelihood” of persecution, the BIA was requiring Ghadessi to demonstrate the “probability” of persecution. See Garcia-Ramos, 775 F.2d at 1373 (withholding of deportation statute requires showing of a “probability” or “likelihood” of persecution). This “probability” or “likelihood” standard has been expressly rejected by this court in considering petitions for asylum. The “well-founded fear” standard applied to claims for asylum under section 208(a) of the Refugee Act, 8 U.S.C. § 1158(a), is “more generous” than the “clear probability of persecution” standard applied to petitions for mandatory withholding of deportation under section 243(h) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h). Bolanos-Hernandez v. INS, 767 F.2d 1277, 1282 (9th Cir.1984). The “well-founded fear” standard applied to claims for asylum includes a subjective and an objective component. Diaz-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir.1986); Hemandez-Ortiz, 777 F.2d at 513. An applicant satisfies the subjective component if she shows that her fear is genuine. Diaz-Escobar, 782 F.2d at 1492. The objective component is satisfied if persecution is a “reasonable possibility,” Hernandez-Ortiz, 777 F.2d at 513; Garcia-Ramos, 775 F.2d at 1374. There is no requirement of a showing of a “likelihood” of persecution. ■ Finally, the BIA erred by simply noting the absence of independent corroborating evidence and failing to give any consideration to the substance of Ghadessi’s allegations in her affidavit. On a motion to reopen, the BIA must indicate both individualized and cumulative consideration of all of the relevant evidence presented in support of the motion. The BIA decision is devoid of any such analysis. IV Merits of the Prima Facie Case Analysis Applying the proper standard and accepting Ghadessi’s affidavit as true, Ghadessi has established a prima facie showing of a well-founded fear of persecution. She has presented “specific facts that give rise to an inference that the applicant has been or has good reason to fear that he or she will be singled out for persecution.” See Del Valle v. INS, 776 F.2d 1407, 1411 (9th Cir.1985). In her affidavit, Ghadessi" }, { "docid": "17385634", "title": "", "text": "of Aquino on August 21, 1983. He submitted newspaper reports concerning the Phillipines and noted that a cousin and friends had been detained in 1972, at the time that Phillipine President Ferdinand Marcos imposed martial law. On August 2, 1984, the BIA denied the motion to reopen Dolores’ deportation proceedings. The BIA found that Dolores had failed to establish a prima facie case of eligibility for asylum or withholding of deportation. The decision on Dolores’ motion to reopen his deportation proceedings in order to apply for asylum rests in the sound discretion of the INS. Balani v. I.N.S., 669 F.2d 1157, 1161 (6th Cir.1982) (Per Curiam). INS regulations provide that such a motion will not be granted unless supported by new and material evidence that was not available at the former hearing. See 8 C.F.R. §§ 3.2, 3.8(a). The INS has interpreted these regulations to provide that reopening is not appropriate unless the alien makes “a prima facie showing that the statutory requirements for the relief sought have been met.” Matter of Garcia, 16 I & N Dec. 653, 654 (BIA 1978). See also Matter of Martinez-Romero, 18 I & N Dec. 75, 78 (BIA 1981), aff'd on other grounds, 692 F.2d 595 (9th Cir.1982). This Court has previously accepted the INS’ interpretation. See, e.g., Balani, 669 F.2d at 1162. Dolores seeks to reopen his case in order to apply for a grant of asylum under section 208(a) of the Immigration and Nationality Act (INA or the Act), 8 U.S.C. § 1158(a). A request for asylum that is made, as here, after the institution of deportation proceedings is by regulation also considered to be a request for withholding of deportation, as provided for by section 243(h) of the INA, 8 U.S.C. § 1253(h). See 8 C.F.R. § 208.3(b). We must first determine whether the BIA abused its discretion by denying Dolores’ motion to reopen on the ground that he did not make out a prima facie case for either withholding of deportation or asylum. The Supreme Court recently held that “an alien must establish a clear probability of persecution ”" } ]

[ { "docid": "22751927", "title": "", "text": "(1987), and now affirm. II At the outset, we address the suggestion, raised for the first time during oral argument, that this case is moot. Under Article III of the Constitution this Court may only adjudicate actual, ongoing controversies. Nebraska Press Assn. v. Stuart, 427 U. S. 539, 546 (1976); Preiser v. Newkirk, 422 U. S. 395, 401 (1975). That the dispute between the parties was very much alive when suit was filed, or at the time the Court of Appeals rendered its judgment, cannot substitute for the actual ease or controversy that an exercise of this Court’s jurisdiction requires. Steffel v. Thompson, 415 U. S. 452, 459, n. 10 (1974); Roe v. Wade, 410 U. S. 113, 125 (1973). In the present case, we have jurisdiction if there is a reasonable likelihood that respondents will again suffer the deprivation of EHA-mandated rights that gave rise to this suit. We believe that, at least with respect to respondent Smith, such a possibility does in fact exist and that the case therefore remains justiciable. Respondent John Doe is now 24 years old and, accordingly, is no longer entitled to the protections and benefits of the EHA, which limits eligibility to disabled children between the ages of 3 and 21. See 20 U. S. C. § 1412(2)(B). It is clear, therefore, that whatever rights to state educational services he may yet have as a ward of the State, see Tr. of Oral Arg. 23, 26, the Act would not govern the State’s provision of those services, and thus the case is moot as to him. Respondent Jack Smith, however, is currently 20 and has not yet completed high school. Although at present he is not faced with any proposed expulsion or suspension proceedings, and indeed no longer even resides within the SFUSD, he remains a resident of California and is entitled to a “free appropriate public education” within that State. His claims under the EHA, therefore, are not moot if the conduct he originally complained of is “ ‘capable of repetition, yet evading review.’” Murphy v. Hunt, 455 U. S. 478, 482" } ]

[ { "docid": "23100885", "title": "", "text": "22 at 389, 394-95 (discretion should look to impact of a decision on the merits on the necessity for future litigation. The amenability of a fact pattern to definitive resolution would imply that future litigation might be minimized by taking jurisdiction). . See Note, Developments in the Law — Class Actions, 89 Harv.L.Rev. 1318, 1364-66, (1977) (Supreme Court has moved from the focus on continuing controversy with named plaintiff to an inquiry into the status of legal issues in dispute between the class and the class adversary); Note, Mootness Doctrine, supra note 22 at 388-395 (non-mootness may be predicated upon existence of injury to class). . 552 F.2d 534 (3d Cir. 1977) (en banc). . E. g. Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911) (regulatory order effective for two years); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (gestation period as limit to impact of abortion law); Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1976) (one year residency requirement for divorces); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (one year residency period for eligibility to vote); Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) (“gag order” limited to duration of trial); Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 125-27, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974) (welfare benefits to striking workers); United States v. New York Telephone Co., 434 U.S. 159, 165 n. 6, 98 S.Ct. 364, 54 L.Ed.2d 376 n. 6 (1977) (“pen register” order of limited duration). Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (pretrial detention). See Note, Mootness Doctrine, supra note 22 at 383-388, Singleton v. Wulff, 428 U.S. 106, 117, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (dictum). Cf. Preiser v. Newkirk, 422 U.S. 395, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975) (challenge to prison disciplinary procedure moot where punishment of named plaintiff under procedure had ceased, no class action had been alleged, and plaintiff could have" }, { "docid": "19693842", "title": "", "text": "not moot or comes under the exception for cases that are capable of repetition yet evading review. They farther argue that, even if the ease is moot, vacatur is not appropriate here. We turn first to a determination of whether this ease has become moot and, concluding that it has, to the question of whether vacatur should be granted. II. Mootness Article III of the Constitution restricts the federal courts to deciding only “actual, ongoing controversies,” Honig v. Doe, 484 U.S. 305, 317, 108 S.Ct. 592, 601, 98 L.Ed.2d 686 (1988), and a federal court has no “power to render advisory opinions [or] ... ‘decide questions that cannot affect the rights of litigants in the ease before them.’ ” Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975) (quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971)). Moreover, a live controversy must exist at all stages of review. Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990); Preiser, 422 U.S. at 401-02, 95 S.Ct. at 2334-35. Hence, “[e]ven where litigation poses a live controversy when filed, ... [this] court [must] refrain from deciding it if ‘events have so transpired that the decision will neither presently affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future.’ ” Clarke v. United States, 915 F.2d 699, 701 (D.C.Cir.1990) (in banc) (quoting Transwestern Pipeline Co. v. FERC, 897 F.2d 570, 575 (D.C.Cir.1990)). The intervening event arguably ending any live controversy between plaintiffs and the District was the District’s enactment of the new campaign contribution legislation that amended Initiative 41’s contribution limits. Thus, voluntary cessation analysis governs our mootness inquiry. Although generally voluntary cessation of challenged activity does not moot a case, a court may conclude that voluntary cessation has rendered a ease moot if the party urging mootness demonstrates that (1) “there is no reasonable expectation that the alleged violation will recur,” and (2) “interim relief or events have completely or irrevocably eradicated the effects of the" }, { "docid": "2942642", "title": "", "text": "prong poses a legal question. Collins, 962 F.2d at 1511. Because the district court never reached this question, we remand for a determination of whether plaintiffs action fits the legal definition of a “catalyst.” If so, the district court may assess costs against the state in accordance with 30 U.S.C. § 1270(d). III. THE CASE AGAINST THE FEDERAL DEFENDANTS A. We next examine whether the case against the federal defendants is moot. The jurisdiction of federal courts extends only to actual cases and controversies. U.S. Const, art. III, § 2, cl. 1; Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2796, 49 L.Ed.2d 683 (1976). Federal courts therefore “avoid advisory opinions on abstract propositions of law.” Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 202, 24 L.Ed.2d 214 (1969). The federal defendants contend that this case no longer presents a live controversy, rendering plaintiffs claim moot. “A claim is moot when no reasonable expectation exists that the alleged violation will recur and interim relief of events have eliminated the effects of the alleged violation.” Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1524 (10th Cir.1992). “[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 1216 n. 10, 39 L.Ed.2d 505 (1974). In this ease, plaintiff asks the court to enforce the allegedly mandatory requirements of 30 C.F.R. § 732.13(j)(3). Even if the steps contemplated by section 732.13(j)(3) are required, however, they apply only when the Secretary has conditionally approved the state’s program. Here, the Secretary has determined that the state has fully complied with SMCRA’s requirements and therefore removed conditional approval. See 59 Fed. Reg. 53,094. This court can offer no relief. The case is moot. B. Plaintiff also asks for attorney’s fees against the federal government under 30 U.S.C. § 1270(d). Although we remand for a determination of whether attorney’s fees may appropriately be assessed against the state, the same determination is not necessary against the United States." }, { "docid": "23342507", "title": "", "text": "at the time the complaint under consideration was filed.” Arrowhead, 846 F.2d at 734 n. 2, 6 USPQ2d at 1687 n. 2. We agree wholeheartedly that in person-am and subject matter jurisdictional facts must be pleaded, and proved when challenged, and that later events may not create jurisdiction where none existed at the time of filing. Thus, well-pleaded jurisdictional facts, such as diversity of citizenship, cannot be ousted by subsequent events. Mollan v. Torrance, 6 U.S. (1 Wheat.) 172, 173 (1824) (changed residence of a party did not defeat jurisdiction because “the jurisdiction of the court depends upon the state of things at the time of the action brought, and [ ] after vesting, it cannot be ousted by subsequent events”). Although Spectron-ics correctly states the rule of law requiring that such jurisdictional facts sufficient to support declaratory judgment jurisdiction be alleged in the well-pleaded complaint, application of that rule does not conclude the inquiry, since facts sufficient to vest jurisdiction initially may remain immutable where no justiciable controversy survives. “Article III of the Constitution requires that there be a live case or controversy at the time that a federal court decides the case.” Amstar Corp. v. Envirotech Corp., 823 F.2d 1538, 1549, 3 USPQ2d 1412, 1420 (Fed.Cir.1987) (quoting Burke v. Barnes, 479 U.S. 361, 363, 107 S.Ct. 734, 736, 93 L.Ed.2d 732 (1987)). Moreover, “[a]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975) (quoting Steffel v. Thompson, 415 U.S. 452, 459, n. 10, 94 S.Ct. 1209, 1216, n. 10, 39 L.Ed.2d 505 (1974)). The Declaratory Judgment Act, “in its limitation to ‘cases of actual controversy,’ manifestly has regard to the constitutional provision and is operative only in respect to controversies which are such in the constitutional sense.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-40, 57 S.Ct. 461, 463, 81 L.Ed. 617, reh’g denied, 300 U.S. 687, 57 S.Ct. 667, 81 L.Ed. 889 (1937). Thus, declaratory judgment jurisdiction at any stage" }, { "docid": "22287764", "title": "", "text": "when the case was settled. Federal jurisdiction is limited to actual cases and controversies; if there is no live case or controversy the appeal usually is moot. See Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2796, 49 L.Ed.2d 683 (1976). The protective orders arguably are not live controversies for two reasons. First, they were vacated when the jury had been selected; the Globe has had access to the sought-after discovery materials since that time. Second, the underlying tort action has been settled. The Supreme Court has held, however, that an issue is not moot if it is “capable of repetition, yet evading review.” Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911); see also Press-Enterprise Co. v. Superior Court, — U.S. -, 106 S.Ct. 2735, 2739, 92 L.Ed.2d 1 (1986); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603, 102 S.Ct. 2613, 2618, 73 L.Ed.2d 248 (1982); Gannett Co. v. DePasquale, 443 U.S. 368, 377-78, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608 (1979); Nebraska Press Assn. v. Stuart, 427 U.S. at 546-47, 96 S.Ct. at 2796-97; Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973). This exception applies if: (1) “there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again”; and (2) “the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration.” Weinstein v. Bradford, 423 U.S. at 149, 96 S.Ct. at 348. There is little doubt that “the same complaining party [will] be subjected to the same action again.” Id. The Globe probably will face similar protective orders in its future news-gathering efforts. The issues raised on appeal about the use of such orders to deny access to discovery materials are unsettled and important; indeed, they implicate the first amendment to the Constitution. Thus, the issues are “capable of repetition.” See Gannett Co. v. DePasquale, 443" }, { "docid": "7204351", "title": "", "text": "stated that he will not revoke the Confirmation Order, even if Chang could prove fraud because there is no relief under § 1144 that he can fashion to protect those parties who have relied in good faith on the Confirmation Order. See Order Granting Defendants’ Motion for Summary Judgment at p. 6, 17; Order Denying Motion for Rehearing of Order Granting Defendants’ Motion for Summary Judgment at p. 2. Discussion The principal issue here is whether Chang’s appeal is moot and should thus be dismissed. Several related considerations dictate that this appeal should be dismissed: constitutional principles of mootness; the substantial consummation of the Plan; the lack of effective relief available in this case; and, the inaction of Chang prior to this § 1144 action. Mootness is premised on the constitutional jurisdictional notion that federal courts can only hear live controversies. U.S. Const, art. III. An “actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Preiser v. Newkirk, 422 U.S. 395, 401-402, 95 S.Ct. 2330, 2334-35, 45 L.Ed.2d 272 (1974) (quoting Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 1215 n. 10, 39 L.Ed.2d 505 (1974)). If a court finds in favor of the plaintiff, but it is impossible to grant any effectual relief, the court will not proceed to formal judgment and will dismiss the appeal as moot. Mills v. Green, 159 U.S. 651, 16 S.Ct. 132, 40 L.Ed. 293 (1895). Therefore, even if Chang presented a live controversy at the time • he filed his § 1144 action, if the appeal is moot, it must be dismissed. The constitutional principle of mootness retains its vitality in the context of a bankruptcy appeal. Miami Center Ltd. Partnership v. Bank of New York, 838 F.2d 1547, 1553-1556 (11th Cir.), cert. denied, 488 U.S. 823, 109 S.Ct. 69, 102 L.Ed.2d 46 (1988) (“Miami Center II ”). It is appropriate for a court to dismiss a bankruptcy appeal when the reorganization plan has been substantially consummated and it has “become legally and- practically impossible to unwind the consummation" }, { "docid": "22861403", "title": "", "text": "Court. . My examination of a random assortment of the Supreme Court’s mootness decisions has failed to disclose an instance in which the Court has applied the “capable of repetition but evading review” exception to review contentions asserted by a petitioner who was fully victorious in the lower court. See, e. g., SEC v. Sloan, 436 U.S. 103, 109-10, 98 S.Ct. 1702, 1707-1708, 56 L.Ed.2d 148 (1978); First National Bank v. Bellotti, 435 U.S. 765, 774-75, 98 S.Ct. 1407, 1414-1415, 55 L.Ed.2d 707 (1978); United States v. New York Tel. Co., 434 U.S. 159, 165 n.6, 98 S.Ct. 364, 368, 54 L.Ed.2d 376 (1977); Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546-47, 96 S.Ct. 2791, 2796-2797, 49 L.Ed.2d 683 (1976); Gerstein v. Pugh, 420 U.S. 103, 110-11 n.11, 95 S.Ct. 854, 861, 43 L.Ed.2d 54 (1975); Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 123-27, 94 S.Ct. 1694, 1698-1700, 40 L.Ed.2d 1 (1978); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (1969). . Although a good case for federal court abstention on the constitutional issues could be made, I will not make it. A federal court may raise abstention sua sponte, see Bellotti v. Baird, 428 U.S. 132, 143-44 n.10, 96 S.Ct. 2857, 2864, 49 L.Ed.2d 844 (1976), but the complexion of this case has changed so dramatically since the panel argument that injection of that issue into this litigation at this date would put the parties at a disadvantage. As discussed above, the Supreme Court’s decisions in United States Parole Commission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), and Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980), substantially altered the law of mootness in the period between panel and in banc consideration. Moreover, the majority’s extensive analysis of state procedure was barely mentioned in the briefs or arguments. Finally, no pending state court decision addressing these issues has come to our attention, and" }, { "docid": "23342508", "title": "", "text": "requires that there be a live case or controversy at the time that a federal court decides the case.” Amstar Corp. v. Envirotech Corp., 823 F.2d 1538, 1549, 3 USPQ2d 1412, 1420 (Fed.Cir.1987) (quoting Burke v. Barnes, 479 U.S. 361, 363, 107 S.Ct. 734, 736, 93 L.Ed.2d 732 (1987)). Moreover, “[a]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975) (quoting Steffel v. Thompson, 415 U.S. 452, 459, n. 10, 94 S.Ct. 1209, 1216, n. 10, 39 L.Ed.2d 505 (1974)). The Declaratory Judgment Act, “in its limitation to ‘cases of actual controversy,’ manifestly has regard to the constitutional provision and is operative only in respect to controversies which are such in the constitutional sense.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-40, 57 S.Ct. 461, 463, 81 L.Ed. 617, reh’g denied, 300 U.S. 687, 57 S.Ct. 667, 81 L.Ed. 889 (1937). Thus, declaratory judgment jurisdiction at any stage of litigation is limited to “the determination of controversies to which under the Constitution the judicial power extends.” Id. at 240, 57 S.Ct. at 464. Mootness is “one of the doctrines that clusters about Article III, to define further the case-or-controversy requirement that limits the federal judicial power in our system of government.” McKinney v. U.S. Dep’t of Treasury, 799 F.2d 1544, 1549, 4 Fed.Cir. (T) 103, 106 (1986) (citation omitted); see North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971) (mootness is a jurisdictional question because federal courts are “ ‘not empowered to decide moot questions or abstract propositions’ ”) (citation omitted)); see also United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed. 36 (1950). The exercise of judicial power under Article III depends at all times on the existence of a case or controversy. The burden is on Spectronics “to establish that jurisdiction over its declaratory judgment action existed at, and has continued since, the time the complaint was filed.”" }, { "docid": "18906354", "title": "", "text": "from her position with the Commonwealth’s Civil Defense Agency and has since been unemployed. Feeney Exhibit 82. IV A threshold legal question is whether there remains a live controversy between the plaintiffs in the Anthony case and the defendants named in that action. On April 17, 1975, the Massachusetts legislature enacted ch. 134 of the Acts of 1975, amending Mass.Gen.Laws ch. 31, § 5. The amendment, which became effective on July 16,1975, removed all appointments for state and municipal legal positions made after its effective date from the provisions of the state civil service law. Thus, the positions sought by the three plaintiffs in the Anthony case are no longer subject to the Veterans’ Preference. Accordingly, the defendants now claim that the Anthony case is moot. Although the Anthony plaintiffs did present a justiciable claim at the outset of the litigation, the “case or controversy” limitation of Article III requires “an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272, 277 (1975), quoting Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 1216, 39 L.Ed.2d 505, 515 (1974). See DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974); Britt v. McKenney, 529 F.2d 44 (1st Cir. 1976); Marchand v. Director, U. S. Probation Office, 421 F.2d 331, 332 (1st Cir. 1970). The doctrine of mootness is designed to shield the federal courts from rendering advisory opinions on what the law should be, or being drawn into disputes not affecting the rights of the litigants who are before them. North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413, 415 (1971). Cf. Warth v. Seldin, 422 U.S. 490, 499 n. 10, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343, 355 (1975). The question in each case, therefore, is whether there is a substantial controversy between parties of sufficient immediacy and reality which would allow a court to grant specific relief through a decree of conclusive character." }, { "docid": "14894440", "title": "", "text": "intervenor, however, purports to support Northwest. The parties are in further disaccord as to whether, if the case is indeed moot, FERC’s orders should be vacated under the Munsingwear doctrine. United States v. Munsingwear, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950). Among other contentions, James River II, Inc. contends that it will suffer harm in separate, independent antitrust litigation which it has initiated against Northwest out in the Pacific Northwest. Of this we shall presently say more, but we must first turn to the potentially case-killing question of mootness vel non. II A The doctrine of mootness is founded on the “case or controversy” requirement of Article III, § 2 of the Constitution. See, e.g., Honig v. Doe, — U.S. -, 108 S.Ct. 592, 601, 98 L.Ed.2d 686 (1988); Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2796, 49 L.Ed.2d 683 (1976); Gulf Oil Corp. v. Brock, 778 F.2d 834, 838 (D.C.Cir.1985). But see Honig, 108 S.Ct. at 607-09 (Rehnquist, C.J., concurring) (suggesting an attenuated connection between mootness doctrine and Article III that can be overridden by compelling circumstances). This requirement forbids federal courts from issuing advisory opinions or “deciding] questions that cannot affect the rights of litigants in the case before them.” Better Gov’t Ass’n v. Department of State, 780 F.2d 86, 90-91 (D.C. Cir.1986) (quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971)). Unless we are presented with a “ ‘real and substantial controversy admitting of specific relief through a decree of conclusive character,’ ” we are obliged to find the case moot. Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975) (quoting Aetna Life Ins. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937)). Our obligation is no less pressing in the context of agency action. See Tennessee Gas Pipeline Co. v. Federal Power Com’n, 606 F.2d 1373, 1379 (D.C.Cir.1979) (citing Mechling Barge Lines v. United States, 368 U.S. 324, 328-330, 82 S.Ct. 337, 340-41, 7 L.Ed.2d 317 (1961)). Here, Northwest" }, { "docid": "10777605", "title": "", "text": "v. Mazurkiewicz, 451 F.Supp. 671 (E.D.Pa.1978); Tyler v. Ryan, 419 F.Supp. 905 (E.D.Mo.1976). Rather, the prisoner must allege a personal loss and seek to vindicate a deprivation of his own constitutional rights. See generally Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (Jus tertii rule); Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Appellant in this case was no longer imprisoned at the Tioga County jail at the time he brought his suit. He had been returned to the Dallas Penitentiary where he had been serving a term of imprisonment prior to his temporary transfer to the Tioga County jail. Moreover, he does not seek damages for deprivation of his rights while he was at the Tioga facility. Compare Culp v. Martin, 471 F.2d 814 (5th Cir. 1973). Rather, he prays only for injunctive and declaratory relief to improve the conditions for those inmates still imprisoned at Tioga. While helping one’s fellow citizen is an admirable goal, the Constitution limits federal court jurisdiction to review of “actual cases or controversies” in which the plaintiff has a “personal stake” in the litigation. U.S.Const. art. III, § 2; United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396-97, 100 S.Ct. 1202, 1208-09, 63 L.Ed.2d 479 (1980); O’Shea v. Littleton, 414 U.S. 488, 493-94, 94 S.Ct. 669, 674, 675, 38 L.Ed.2d 674 (1974). The case or controversy must be a continuing one and must be “live” at all stages of the proceedings. Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 (1973). Accordingly, the courts have held that a prisoner lacks standing to seek injunctive relief if he is no longer subject to the alleged conditions he attempts to challenge. See Mawhinney v. Henderson, 542 F.2d 1, 2 (2d Cir. 1976); Culp, 471 F.2d at 815. Nonetheless, we will not dismiss appellant’s complaint at this stage for lack of standing. While, as it stands, appellánt’s complaint may fall short of showing an actual" }, { "docid": "23100884", "title": "", "text": "392 U.S. 83, 94-95, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968), quoted in Franks v. Bowman Transportation Co., 424 U.S. 747, 755, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). See e. g. Note, Mootness Doctrine, supra note 22 at 376-377. . The judgment of a federal court must resolve “a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975), quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971), quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 81 L.Ed. 617 (1937). . See, e. g„ Warth v. Seldin, 422 U.S. 490, 498-501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). . See Kane, supra note 22 at 84-85, 94-96 (two part test exists: actual injury and controversy and discretionary determination), Note, Mootness Doctrine, supra note 22 at 389, 394-95 (discretion should look to impact of a decision on the merits on the necessity for future litigation. The amenability of a fact pattern to definitive resolution would imply that future litigation might be minimized by taking jurisdiction). . See Note, Developments in the Law — Class Actions, 89 Harv.L.Rev. 1318, 1364-66, (1977) (Supreme Court has moved from the focus on continuing controversy with named plaintiff to an inquiry into the status of legal issues in dispute between the class and the class adversary); Note, Mootness Doctrine, supra note 22 at 388-395 (non-mootness may be predicated upon existence of injury to class). . 552 F.2d 534 (3d Cir. 1977) (en banc). . E. g. Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911) (regulatory order effective for two years); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (gestation period as limit to impact of abortion law); Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1976) (one year" }, { "docid": "23100887", "title": "", "text": "no “reasonable expectation of repetition” of the procedure in question). . Compare e. g. United States v. New York Telephone Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977); Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974) with Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). . See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (other pregnant women denied abortion, even after plaintiffs term of pregnancy); Sosna v. Iowa, 419 U.S. 393, 399-403, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (1 year residency requirement for divorce, applicable to other potential divorcees); Dunn v. Blum-stein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (1 year voter residency requirement applicable to others who move into the voting district). . Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). . 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974). . 418 U.S. at 35, 94 S.Ct. 2655. . See Warth v. Seldin, 422 U.S. 490, 514-517, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). . 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). . 424 U.S. at 756 n. 8, 96 S.Ct. 1251. See 424 U.S. at 781, 96 S.Ct. 1251 (opinion of Powell, J. joined by Rehnquist, J. concurring on this point). . 424 U.S. at 756-57, 96 S.Ct. 1251. In contrast, in E. Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977), where the plaintiff had never been a part of the class which he sought to represent, it was held that the" }, { "docid": "23100886", "title": "", "text": "residency requirement for divorces); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (one year residency period for eligibility to vote); Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) (“gag order” limited to duration of trial); Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 125-27, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974) (welfare benefits to striking workers); United States v. New York Telephone Co., 434 U.S. 159, 165 n. 6, 98 S.Ct. 364, 54 L.Ed.2d 376 n. 6 (1977) (“pen register” order of limited duration). Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (pretrial detention). See Note, Mootness Doctrine, supra note 22 at 383-388, Singleton v. Wulff, 428 U.S. 106, 117, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (dictum). Cf. Preiser v. Newkirk, 422 U.S. 395, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975) (challenge to prison disciplinary procedure moot where punishment of named plaintiff under procedure had ceased, no class action had been alleged, and plaintiff could have no “reasonable expectation of repetition” of the procedure in question). . Compare e. g. United States v. New York Telephone Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977); Nebraska Press Assn. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974) with Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). . See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (other pregnant women denied abortion, even after plaintiffs term of pregnancy); Sosna v. Iowa, 419 U.S. 393, 399-403, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (1 year residency requirement for divorce, applicable to other potential divorcees); Dunn v. Blum-stein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (1 year voter residency requirement applicable to others who move into the voting district). . Gerstein v. Pugh," }, { "docid": "23272464", "title": "", "text": "appeal, all the student members of the Fitzgerald group had already graduated from Downingtown Senior High School. We are therefore required to consider whether the graduation of the applicants for intervention who are members of the Class of 1991 renders this appeal moot. This Court is limited by Article III of the Constitution to adjudicating only live cases or controversies, and we are consequently unable to decide questions that have become moot. De Funis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 1705, 40 L.Ed.2d 164 (1974) (per curiam). The mootness bar does not apply, however, if the dispute presented is “capable of repetition, yet evading review.” Under this doctrine, two elements must be met: “(1) the challenged action [must be] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [must be] a reasonable expectation that the same complaining party would be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam). See also Roe v. Wade, 410 U.S. 113, 124-25, 93 S.Ct. 705, 712-13, 35 L.Ed.2d 147 (1973) (“Pregnancy often comes more than once to the same woman, and ... provides a classic justification for a conclusion of non-mootness.”). In the present case, the length of the school year during which a student is a graduating high school senior is clearly too short to complete litigation and appellate review of a case of this complexity. See Board of Educ. v. Rowley, 458 U.S. 176, 186 n. 9, 102 S.Ct. 3034, 3041 n. 9, 73 L.Ed.2d 690 (1982) (student’s claim under Education of the Handicapped Act for preceding school year not moot because claim may arise in subsequent years and “[j]udi-cial review invariably takes more than nine months to complete”); cf. Roe, 410 U.S. at 125, 93 S.Ct. at 713 (“the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete”). As a result, this controversy is one which “evades review.” The applicants for intervention" }, { "docid": "6857110", "title": "", "text": "refusing to grant Pressley Ridge an administrative hearing to appeal the State’s decision to impose prepayment review. Because the parties have entered into a settlement, however, no live dispute between them currently exists. Accordingly, we lack jurisdiction to consider this case. Article III of the United States Constitution limits the jurisdiction of the federal courts to “actual, ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317, 108 S.Ct. 592, 601, 98 L.Ed.2d 686 (1988); see U.S. Const. art. III, § 2, cl. 1. “To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time a complaint is filed.” Arizonans for Official English v. Arizona, — U.S.-,-, 117 S.Ct. 1055, 1068, 137 L.Ed.2d 170 (1997) (citation and internal quotation omitted). Thus, a federal court has no “power to render advisory opinions [or] ... decide questions that cannot affect the rights of litigants in the case before them.” Honig, 484 U.S. at 317, 108 S.Ct. at 600-01; see also Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975). At oral argument, the State cited two cases assertedly supporting its contention that, despite the settlement agreement, the issues raised in this appeal are not moot. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 369, 102 S.Ct. 1114, 1119, 71 L.Ed.2d 214 (1982); Reeves Bros., Inc. v. United States Envtl. Protection Agency, 956 F.Supp. 665, 675 (W.D.Va.1995). Both cases are clearly distinguishable from the one at hand. In Havens, although the parties had entered into a settlement agreement, “one of the parties continue[d] to seek damages” and the agreement simply set forth a means to liquidate those damages. 455 U.S. at 371, 102 S.Ct. at 1120. The Supreme Court concluded that “[g]iven respondents’ continued active pursuit of monetary relief, this case remains ‘definite and concrete, touching the legal relations of parties having adverse legal interests.’ ” Id. (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 463-64, 81 L.Ed. 617 (1937)). Similarly, in Reeves Bros., although the parties" }, { "docid": "7984973", "title": "", "text": "Corp. v. Mont gomery, 284 U.S. 547, 52 S.Ct. 215, 76 L.Ed. 476 (1932), where the Court of Appeals’ order remanding to the District Court to consider new evidence was entered after the Court of Appeals lost jurisdiction of the case (by virtue of its earlier order dismissing the appeal). See id. at 551-52, 52 S.Ct. 215. . U.S.Const., Art. Ill, Sec. 2. . See e. g., Golden v. Zwickler, 394 U. S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). . See, e. g., Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975). [A] federal court has neither the power to render advisory opinions nor “to decide questions that cannot affect the rights of litigants in the case before them.” Its judgments must resolve “ ‘a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ ” (Citations omitted.) . Of course, plaintiffs have not conceded the propriety of the CIA’s decision to withhold certain documents or portions of documents pursuant to FOIA. See note 2, supra. . See, e. g. Allee v. Medrano, 416 U.S. 802, 818 n.12, 94 S.Ct. 2191, 2202, 40 L.Ed.2d 566 (1974): “In the federal system an appellate court determines mootness as of the time it considers the case, not as of the time it was filed.” See also Steffel v. Thompson, 415 U.S. 452, 459-60 & n.10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). . “There would certainly be no doubt of the need for a court remand if the change of circumstances were such as to make the case moot.” Greater Boston Television Corp. v. F. C. C., 149 U.S.App.D.C. 322, 337 n.25, 463 F.2d 268, 283 n.25 (1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2042, 32 L.Ed.2d 338 (1972). Although Judge Leventhal there referred to review of agency proceedings, the same jurisdictional considerations apply to appellate review of a district court decision. . As I noted in my earlier dissent, “[m]y" }, { "docid": "1896894", "title": "", "text": "validity and infringement are distinct, the prevailing party on liability seeking to challenge either validity or infringement on appeal must file a cross-appeal. Shelcore, Inc. v. Durham Industries, Inc., 745 F.2d 621, 623 n. 1, 223 USPQ 584, 585 n. 1 (Fed.Cir.1984); see Radio Steel & Mfg. Co. v. MTD Products, Inc., 731 F.2d 840, 844, 221 USPQ 657, 660 (Fed.Cir.), cert. denied, 469 U.S. 831, 105 S.Ct. 119, 83 L.Ed.2d 62 (1984). By filing a cross-appeal following the denial of JNOV on the obviousness issue, Japax has properly met that requirement in this case. . The court in Webb declined to address the question of whether the establishment of declaratory judgment jurisdiction at the time of the filing of the action is sufficient to sustain the case or controversy requirement to the conclusion of the action. But it left little doubt as to its likely position on the question, noting that the Supreme Court had stated that \"'an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’\" 742 F.2d at 1398 n. 6, 222 USPQ at 949 n. 6 (quoting Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975)); see also Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 1216 n. 10, 39 L.Ed.2d 505 (1974). Subsequently, in International Medical Prosthetics Research Associates, Inc. v. Gore Enterprise Holdings, Inc., 787 F.2d 572, 575, 229 USPQ 278, 281 (Fed.Cir.1986), this court expressly confirmed its adoption and adherence to the need for a continuing controversy in order to sustain the court's jurisdiction over a declaratory judgment action. . As the court explained: This holding does not preclude the issuance of a declaratory judgment that all claims are valid or invalid in response to, inter alia, (1) the filing of a declaratory judgment complaint asserting the invalidity of all of a patentee’s claims in response to general accusations of infringement by the patentee ... ; (2) the filing of a declaratory judgment counterclaim asserting the invalidity of all of patentee’s claims in" }, { "docid": "17691370", "title": "", "text": "415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 1213 n. 10, 39 L.Ed.2d 505 (1974); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 (1973); Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959, 22 L.Ed.2d 113 (1969). Thus, mootness has two aspects: (1) the issues presented are no longer “live” or (2) the parties lack a cognizable interest in the outcome. United States Parole Commission v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980). In this vein, we held in Finberg v. Sullivan, 658 F.2d 93, 97-98 (3d Cir.1980) (in banc), and reaffirmed in Galda v. Blou-stein, 686 F.2d 159, 162-63 (3d Cir.1982): [a] case may become moot if (1) the alleged violation has ceased, and there is no reasonable expectation that it will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation, (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979)). See also Hudson v. Robinson, 678 F.2d 462 (3d Cir.1982). Thus, a matter is not necessarily moot simply because the order attacked has expired; if the underlying dispute between the parties is one “capable repetition, yet evading review,” it remains a justiciable controversy within the meaning of Article III. Nebraska Press Association v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (1976). The “capable of repetition yet evading review” exception is triggered where two elements are combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again. Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982) (per curiam); Gannett Co. v. DePasquale, 443 U.S. 368, 377, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608 (1979) (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975) (per curiam)); Powell v. McCor-mack," }, { "docid": "22861402", "title": "", "text": ". Under 28 U.S.C. § 2281, repealed by Act of August 12, 1976, Pub.L.No. 94-381, a three-judge district court was required whenever a litigant sought an injunction against a state statute on federal constitutional grounds. Whenever a three-judge court was convened, 28 U.S.C. § 2284(b)(2), which has not been explicitly repealed, required notice to the governor and attorney general of the affected state. Because § 2281 is no longer operative, the state officials responsible for enforcement of the state statutes no longer receive official notice of constitutional attacks in federal court. Compare Pa.R.Civ.P. 235 (requiring notice to the attorney general in any case attacking the constitutionality of a Pennsylvania statute). . Without denigrating the defense presented by the sheriff and the prothonotary, I suggest that much of what follows here, as with the majority opinion, is not attributable either to the briefs or arguments of the appellees. It will be interesting to note whether the County of Philadelphia will extend the finances to seek review of this Pennsylvania state issue in the United States Supreme Court. . My examination of a random assortment of the Supreme Court’s mootness decisions has failed to disclose an instance in which the Court has applied the “capable of repetition but evading review” exception to review contentions asserted by a petitioner who was fully victorious in the lower court. See, e. g., SEC v. Sloan, 436 U.S. 103, 109-10, 98 S.Ct. 1702, 1707-1708, 56 L.Ed.2d 148 (1978); First National Bank v. Bellotti, 435 U.S. 765, 774-75, 98 S.Ct. 1407, 1414-1415, 55 L.Ed.2d 707 (1978); United States v. New York Tel. Co., 434 U.S. 159, 165 n.6, 98 S.Ct. 364, 368, 54 L.Ed.2d 376 (1977); Nebraska Press Assn. v. Stuart, 427 U.S. 539, 546-47, 96 S.Ct. 2791, 2796-2797, 49 L.Ed.2d 683 (1976); Gerstein v. Pugh, 420 U.S. 103, 110-11 n.11, 95 S.Ct. 854, 861, 43 L.Ed.2d 54 (1975); Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 123-27, 94 S.Ct. 1694, 1698-1700, 40 L.Ed.2d 1 (1978); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973); Moore v. Ogilvie, 394 U.S." } ]

[ { "docid": "17285399", "title": "", "text": "indicating that fewer outlets were operating in the area and that Henry had obtained work permits, thus demonstrating a willingness to do the repairs that Herró had not. Subsequently, on May 16,1994, the district judge granted summary judgment for defendants (PLApp. A-2). ANALYSIS The district court granted summary-judgment after defendants presented evidence that their licensing decision was not totally irrational or arbitrary. This limited showing — that the challenged action was rationally related to a legitimate state interest — is sufficient to defeat an equal protection claim that does not allege infringement on a fundamental right or reliance on a suspect classification. See Scariano v. Justices of Supreme Court of State of Ind., 38 F.3d 920, 924 (7th Cir.1994); DeSalle v. Wright, 969 F.2d 273, 275 (7th Cir.1992). Plaintiff concedes that we must evaluate his claim according to the more lenient rational basis review (Pl.Br. 4-5), and we do so de novo. Cliff v. Bd. of School Commissioners, City of Indianapolis, 42 F.3d 403 (7th Cir.1994). The district court here concluded that although there were disputed facts with respect to Herro’s putative repair plans, the unchallenged fact that Henry procured work permits and provided renovation plans while Herró did riot constituted “a conceivable or plausible basis for defendants’ differential treatment of Herro’s and Henry’s applications” (Pl.App. A-2). Given this undisputed fact alone, Herro’s claim must fail. Committee members might well have thought that a candidate who was willing to take affirmative steps, involving time and expense, toward making needed repairs would be a better tavern owner than one who had not taken similar actions. Henningsen' stated in his affidavit that he was concerned about allowing an “in-and-out” owner to take control of the tavern, particularly since the surrounding area had experienced problems with litter and prostitution in the past. Under these circumstances, searching for an extremely responsible licensee would be a legitimate goal; and differentiating between two applicants based on the fact that one appeared more committed than the other to the long-term condition of the premises would be a rational means of achieving it. Even were we to doubt" } ]

[ { "docid": "17285403", "title": "", "text": "348 (7th Cir.1992) (“the state’s act of singling out an individual for differential treatment does not itself create the class”) (emphasis in original), affirmed, — U.S. -, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). It is true that older eases from this Circuit suggest a broader reach to the Equal Protection Clause. See, e.g., Falls v. Town of Dyer, 875 F.2d 146 (7th Cir.1989) (holding that a class of only one member can still complain of discrimination against his tiny class if he can show that a combination of legislative and executive action has singled him out for unique treatment). Yet we think that more recent cases, particularly Albright, place additional burdens on plaintiffs to identify the classification behind even a “class of one.” Perhaps Herro’s claim could be read as alleging discrimination based on his membership in a classification consisting of all members of the Herró family applying for new tavern licenses; this is slightly stronger than alleging no class at all, but we are not convinced that it would establish a prima facie equal protection violation. In any event, defendants here have submitted rational bases for their decision, and the district court’s grant of summary judgment, to defendants thus is affirmed. . Liquor and tavern regulations are set forth in Chapter 90 of the Milwaukee Code of Ordinances. The Cláss \"B” license permits licensees to \"sell or offer for sale intoxicating liquors to be consumed by the glass only on the licensed premises.” Milwaukee Code of Ordinances 90-4-1-b. . The Wisconsin statutes give largely unfettered discretion to local authority in issuing Class \"B” tavern licenses. Section 125.51(l)(a) of the Wisconsin statutes states that \"[e]veiy municipal governing body may grant and issue ... “Class B\" licenses ... as the issuing municipal governing body deems proper.” Subsequent provisions place a few administrative limitations on this discretion, such as requiring specific procedures for setting licensing dates; but the only substantive limitations in the statutes prevent governing bodies from selling items to licensees and require them to state reasons when denying a renewal application. 125.5l(l)(a)-(c) Wis.Stat. (1993)." }, { "docid": "10696085", "title": "", "text": "a network of laws and regulations designed to allow charitable organizations to raise money through limited forms of gambling while, at the same time, strictly limiting the use of the money and facilities involved in the gambling in order to prevent fraud and abuse. At trial, Illinois Department of Revenue employees Polly Kirby, Lisa Roberts, and Randi Kap-lan testified about Illinois’s regulatory scheme for charitable gambling. According to those witnesses, only certain charitable organizations, such as the IAWV, are permitted to run bingo halls. A charitable organization must have a license issued by the state to conduct bingo or pull-tab games. See 230 ILCS 20/2; 230 ILCS 25/1. A license, which must be renewed annually, allows the charitable organization to hold bingo or pull-tab games once a week. Illinois law also requires that a charitable organization have a license to conduct raffles, but the licensing of raffles is left to each individual municipality rather than the state. In addition, Illinois law prohibits conducting raffles and bingo games on the same premises. 230 ILCS 25/2(11). A company or person that is not affiliated with a charitable organization may obtain a supplier’s license, which allows that company to sell gambling supplies to the charitable group running the games; or a provider’s license, which allows the company to rent a facility to a charitable group conducting games. See 230 ILCS 20/3.1; 230 ILCS 25/1.4-.5. The provider’s license, like the bingo and pull-tab licenses, has to be renewed yearly by the state of Illinois. Neither the supplier nor the provider may receive any revenue from the games other than a reasonable sum in exchange for providing their services; the net proceeds of the gambling must go to the charitable organization running the games. See 230 ILCS 20/4; 230 ILCS 25/2. Furthermore, only the members of the charitable organization are allowed to participate in operating the games, including selling bingo cards or pull-tabs, calling numbers, confirming and paying winners, and handling or counting the proceeds from the sale of cards and pull-tabs. Most importantly, only members of the charitable organization are allowed to handle the" }, { "docid": "2167666", "title": "", "text": "uniform straitjacket bind citizens in devising mechanisms of local government suitable for local needs and efficient in solving local problems.”). Indeed, as “[e]very application [under N.Y. Penal Law § 400.00(1)-(4) ] triggers a local investigation by police into the applicant’s mental health history, criminal history, [and] moral character,” Kachalsky, 701 F.3d at 87, helping ensure that the scheme functions properly promotes public safety, see Bach, 408 F.3d at 91 (noting that the State “has a substantial and legitimate interest ... in insuring the safety of the general public from individuals who, by their conduct, have shown themselves to be lacking the essential temperament or character which should be present in one entrusted with a dangerous instrument” (quotation marks omitted)). For these reasons, we conclude that Penal Law § 400.00(14), which permits New York City and Nassau County to charge a fee outside of the $3-10 range applicable in other jurisdictions in New York State, survives rational basis review and does not violate the Equal Protection Clause. CONCLUSION To summarize, we hold that, on the facts presented in this appeal: (1) Admin.Code § 10-131(a)(2), which sets the residential handgun licensing fee in New York City at $340 for a three-year license, is a constitutionally permissible licensing fee; (2) Although we are skeptical that Admin. Code § 10-131(a)(2) should be subject to any form of heightened scrutiny, see United States v. Decastro, 682 F.3d 160, 164 (2d Cir.2012), we need not definitively answer that question because we conclude that it survives “intermediate scrutiny” in any event; (3) Penal Law § 400.00(14), which allows New York City (and Nassau County) to set and collect a residential handgun licensing fee outside the $3-10 range permitted in other jurisdictions in New York State, is subject only to “rational basis” review under the Equal Protection Clause because it “neither burdens a fundamental right nor targets a suspect class.” Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996); and (4)Penal Law § 400.00(14) survives “rational basis” review. Accordingly, the March 27, 2012 judgment of the District Court is AFFIRMED. JOHN M. WALKER," }, { "docid": "23430124", "title": "", "text": "of July 30, 1971, and to continue the outstanding temporary restraining orders pursuant to Title 28 U.S.C. § 2284(3). As a result of Rule 36 requests and replies in the instant cases, virtually all relevant facts have been agreed to. They are as follows. The plaintiffs in these actions are persons engaged in the operation of taverns featuring nude and semi-nude dancing in the City of Kenosha. Each of the plaintiffs between June 1970 and June 1971 held a Class “B” liquor license duly issued by the defendant City of Kenosha pursuant to Chapter 176 of the Wisconsin Statutes. Prior to June 1971, the plaintiffs filed with defendant’s clerk appropriate and timely applications for the renewal of their Class “B” licenses for the license year 1971-1972. Public hearings were held by defendant, and for the purposes of those hearings, the plaintiff-applicants for licenses were segregated from the other 154 liquor license applicants because unlike the other 154 applicants, the plaintiffs featured nude entertainment in their bars. During the public hearings, the six plaintiffs were treated as a group rather than as individuals. At these hearings, residents of Kenosha were permitted to speak on the subject of plaintiffs’ license renewals. Speakers, including attorneys representing plaintiffs, spoke both for and against issuance of licenses. No speaker was allowed to be cross-examined (although plaintiffs’ attorneys never made such request) or was sworn under oath, and speakers were permitted to complain about what other unnamed persons had told them. On June 7, 1971, the city council of defendant voted to deny plaintiffs’ applications for license renewals because: “1. The licensee, through his actions in general in operating his establishment has defiled the reputation of the City of Kenosha areawise, statewise and nationally. “2. This person helped furnish an atmosphere conducive to the flourishing of prostitution, creating a bad environment and setting improper moral standards for the children in this community. “3. Since the inception of the type of entertainment allowed by the licensee, the law enforcement problem has increased and the Police Department records indicate that parking and litter problems around the area and" }, { "docid": "22966108", "title": "", "text": "on post-ban applicants, we affirm the grant of summary judgment for the City on the equal protection claim on the ground that the City had a rational basis for its actions. Although it is true that, as the district court observed, the City attempted to revoke some of the existing tags at the very time that it implemented the ban on new licenses, this circumstance alone does not suffice to show that individuals who applied for licenses after the blanket ban were treated the same as similarly situated applicants who applied for licenses prior to the blanket ban. Significantly, although the City denied all new license applications beginning in November 1986, it only initiated revocation proceedings against a handful of the over one hundred machines then in operation — most of those who applied for license tags prior to the ban continued to operate their machines after November 14 while those who applied after the ban had no opportunity even to begin operations. Accordingly, we conclude that the ban implicated equal protection concerns. Cf. Del Monte Dunes v. City of Monterey, 920 F.2d 1496, 1609 (9th Cir.1990) (noting that equal protection clause protects individuals from being singled out to bear the burden of governmental efforts at remedying perceived societal ills). “Unless a classification trammels fundamental personal rights or implicates a suspect classification, to meet constitutional challenge the law in question needs only some rational relation to a legitimate state interest.” Lockary v. Kayfetz, 917 F.2d 1160, 1155 (9th Cir.1990). Although it is true, as Kellogg emphasizes, that even “the rational relation test will not sustain conduct by state officials that is malicious, irrational, or plainly arbitrary,” id., Kellogg cannot show that the City’s blanket ban on new licenses was plainly arbitrary. As described in the analysis of Appellants’ substantive due process claim above, it is undisputed that the City had received numerous complaints concerning the crane games both prior to and immediately after it first stopped issuing new license tags. Even construing all disputed facts in the light most favorable to Kellogg, the existence of the complaints shows that the" }, { "docid": "17285396", "title": "", "text": "CUMMINGS, Circuit Judge. Plaintiff Bernard Herró (“Herró”) sought to open a tavern in a Milwaukee commercial area. Council members of the City of Milwaukee had other ideas; hence Herro’s lawsuit alleging a violation of his Fourteenth Amendment right to equal protection, the subject of this appeal. On May 16, 1994, a district judge granted summary judgment on plaintiffs 42 U.S.C. § 1983 claim to defendants, the City of Milwaukee and four individuals who as city council members had rejected Herro’s tavern license application. The district judge ruled that defendants had adequately rebutted plaintiffs claim that the license denial, coupled with another individual’s successful application for the same license nine months later, violated the Equal Protection Clause. Herró appeals this decision. FACTS On June 26, 1987, Herró filed applications with the City of Milwaukee for a Class “B” tavern license and an occupancy permit for the premises located at 645 North 7th Street. Herró entered into a lease agreement for the property, then vacant, with its owner on the same day. In July 1987, Herró appeared before the Utilities and Licensing Committee of the City of Milwaukee Common Council (“Committee”) for a determination of his Class “B” license. Instead of voting on his application, however, Committee members delayed the vote at the request of defendant Paul Henningsen (“Henning-sen”), the city alderman whose ward encompassed 645 North 7th Street. Henningsen expressed concerns about the premises’ .condition and the tavern’s future operation. In September 1987, Herró and Henningsen met to discuss the proposed tavern license. The parties disagree about the content of this conversation: Henningsen has stated by affidavit that Herró said he would not improve the premises; Herró has insisted that he stood ready to do the necessary improvements and told Henningsen as much. In any event, Henningsen decided not to support Herro’s application when it next came before the Committee. Following several postponements, the Committee finally considered Herro’s application in September 1988. At that meeting, all but one Committee member voted to deny the application based on a purported over-concentration of taverns in the vicinity. Nine months later, however, the same" }, { "docid": "17285397", "title": "", "text": "before the Utilities and Licensing Committee of the City of Milwaukee Common Council (“Committee”) for a determination of his Class “B” license. Instead of voting on his application, however, Committee members delayed the vote at the request of defendant Paul Henningsen (“Henning-sen”), the city alderman whose ward encompassed 645 North 7th Street. Henningsen expressed concerns about the premises’ .condition and the tavern’s future operation. In September 1987, Herró and Henningsen met to discuss the proposed tavern license. The parties disagree about the content of this conversation: Henningsen has stated by affidavit that Herró said he would not improve the premises; Herró has insisted that he stood ready to do the necessary improvements and told Henningsen as much. In any event, Henningsen decided not to support Herro’s application when it next came before the Committee. Following several postponements, the Committee finally considered Herro’s application in September 1988. At that meeting, all but one Committee member voted to deny the application based on a purported over-concentration of taverns in the vicinity. Nine months later, however, the same Committee members (minus Henningsen, who was no longer an alderman but appeared at the meeting in support of the new applicant) voted to approve the license application of Ralph Henry (“Henry”) for the same premises. At that meeting, Henningsen stated that Henry was putting “substantial money” into the premises, which would be “of a class now or the type now that it’s not going to attract the type of unsavory patrons that the place had in years gone by” (Def.App. 393). Herró did not pursue a state court review of the license denial pursuant to Wisconsin law but instead brought this action. The district judge initially ruled that Herró had established a prima facie violation of equal protection that would survive defendants’ motion to dismiss and motion for summary judgment. Herro v. City of Milwaukee, 817 F.Supp. 768 (E.D.Wis.1993). Judge Reynolds asked defendants to submit evidence of the reasons, beyond the asserted “overcon-centration of outlets” which he deemed unsupported, for their decision to reject one application and to grant’ the next. Defendants submitted two reasons," }, { "docid": "10696084", "title": "", "text": "a verdict in favor of the government in this ease, we summarize the evidence in the light most favorable to the government. The people who comprised the central witnesses at trial were: Polly Kirby, the manager of the Illinois Department of Revenue’s office of bingo and charitable games; Patrick Marotta, the former president and CEO of Gore & Kaye, a wholesale distributor of charitable gaming supplies that was the Grand Palace’s primary supplier; Carmen Trombetta and Steven Mariam, IAWV members who were involved in the preparation and operation of the Grand Palace; Carole Johnson, Useni’s former girlfriend and a worker at the Grand Palace; Lorraine Mazzei, Cozzo’s former girlfriend; Aaron Levitanksy, the Grand Palace’s accountant; Donna Dombrowski, the live-in girlfriend of Fred Bingham, the Grand Palace’s bookkeeper; and Richard Lexby, an agent for the Internal Revenue Service (the “IRS”). We refer to those witnesses, as well as any other of the witnesses at trial, when their testimony is relied upon in our narrative of the evidence in this case. A. Illinois Gambling Laws Illinois has a network of laws and regulations designed to allow charitable organizations to raise money through limited forms of gambling while, at the same time, strictly limiting the use of the money and facilities involved in the gambling in order to prevent fraud and abuse. At trial, Illinois Department of Revenue employees Polly Kirby, Lisa Roberts, and Randi Kap-lan testified about Illinois’s regulatory scheme for charitable gambling. According to those witnesses, only certain charitable organizations, such as the IAWV, are permitted to run bingo halls. A charitable organization must have a license issued by the state to conduct bingo or pull-tab games. See 230 ILCS 20/2; 230 ILCS 25/1. A license, which must be renewed annually, allows the charitable organization to hold bingo or pull-tab games once a week. Illinois law also requires that a charitable organization have a license to conduct raffles, but the licensing of raffles is left to each individual municipality rather than the state. In addition, Illinois law prohibits conducting raffles and bingo games on the same premises. 230 ILCS 25/2(11). A" }, { "docid": "16161997", "title": "", "text": "basis for denying a license. The Seventh Circuit struck down an ordinance challenged by a nude dancer which disqualified license applicants who had been convicted of certain enumerated crimes. The court labeled the ordinance a content-based restriction, but then seemingly applied the Renton test, which applies to content-neutral time, place, or manner restrictions. The Seventh Circuit’s apparent holding was that the ordinance “fail[s] to provide alternative channels for communication.” The court also stated that “[t]he First Amendment does not allow licensing provisions based on criminal history that ‘totally prohibit certain classes of persons’ from First Amendment expression.” Even assuming the Seventh Circuit applied the appropriate analysis, it is not clear to this court that the civil disability provision at issue here fails to leave open alternative means of communication. First, the Ordinance only prohibits a tiny class of people from working in sexually oriented businesses. The constitutionally protected material will still be readily available to the public. Second, as to individual persons affected by the Ordinance, the provision prohibits only their employment in sexually oriented businesses. Such persons are still free to disseminate pornographic material, for example, by setting up a website. Therefore, the provision can be easily seen as merely a content-neutral restriction on the manner and location of distribution — the goal being to eliminate the secondary effects of sexually oriented businesses by preventing those who have been guilty of crimes associated with those secondary effects from being employed on the premises. One of the findings of the City Council in adopting the ordinance was that the licensing procedure was a valid means of preventing the secondary effect of the distribution of pornography to minors — the crime for which Mr. Haltom was recently convicted. The Council also found that the “fact that an applicant for an adult use has been convicted of a sexually related crime leads to the rational assumption that the applicant may engage” in the conduct again. Mr. Haltom also points the court to the Fifth Circuit case of Fernandes v. Limmer, 663 F.2d 619 (5th Cir.1981). There the court concluded that an ordinance" }, { "docid": "16039317", "title": "", "text": "to governmental action, “‘the rational relation test will not sustain conduct by state officials that is malicious, irrational or plainly arbitrary.’ ” Id. (quoting Lockary v. Kayfetz, 917 F.2d 1150, 1155 (9th Cir.1990)). The Supreme Court has recognized the viability of equal-protection claims based on a “class of one” theory. Village of Willowbrook v. Olech, 528 U.S. 562, 563, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam). Under a class-of-one theory the plaintiff need not allege any “membership in a class or group.” Id. To state a claim under this theory, the plaintiff must show he “has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Id. Thus, to prevail, “the plaintiff must demonstrate that the government is treating unequally those individuals who are prima facie identical in all relevant respects, and that the cause of the differential treatment is a totally illegitimate animus toward the plaintiff by the defendant.” Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir.2001) (citation omitted). “HI will must be the sole cause of the eomplained-of action.” Id. In the case at bar, plaintiffs do not allege they were part of any class. Instead their equal-protection claims are based on a “class of one” theory. But they have not made the threshold showing they were treated differently from others “similarly situated.” They rely on BOLI’s enforcement' action against Mr. Larry Rue whom BOLI fined for using fraudulent firefighter-training cards. Plaintiffs argue that because BOLI only fined Rue for firefighter-related violations while the agency refused to renew Fremont’s license, the licensees were similarly situated. This is not sufficient to show that Rue was “similarly situated.” For example, plaintiffs do not explain whether Rue had allegedly untrained firefighters in the field at the time BOLI acted, as Lumbreras did when BOLI acted in Lumbreras’s case. Defendants, in fact, submitted an affidavit from Rue’s BOLI case presenter averring that, before deciding not to suspend Rue’s license, BOLI obtained satisfactory verification that Rue’s current firefighters had been trained. See Aff. Burgess ¶ 5. Thus, unlike" }, { "docid": "23280030", "title": "", "text": "of “effective revocation” in some circumstances. However, we are not aware of any previous cases in this court discussing the effective revocation of a certificate or license. For guidance, we turn to our sister circuits. The Seventh Circuit’s holding in Reed v. Vill. of Shorewood, 704 F.2d 943 (7th Cir. 1983), is instructive. In Reed, the owners of a liquor license were harassed by village police and subject to numerous groundless proceedings in an attempt by village officials to take away the liquor license. Although these attempts failed, the continued harassment eventually caused the owners to close their business and surrender their license. In a suit against the village under § 1983, the district court dismissed the complaint because the village had not actually, taken the owners’ license. The Seventh Circuit reversed. It held: The defendants never succeeded in taking away the plaintiffs’ license either by revocation or nonrenewal.... But “deprive” in the due process clause cannot just mean “destroy.” If the state prevents you from entering your house it deprives you of your property right even if the fee simple remains securely yours. A property right is not bare title, but the right of exclusive use and enjoyment. [Here] the plaintiffs were deprived of their property right in the license even though the license was never actually revoked. The principle is familiar from the related area of takings of property that are subject to the just compensation clause of the Fifth Amendment. If government makes your house uninhabitable, that is a taking of your property even if you retain a. clear' title. The principle applies equally to deprivations as distinct from takings (permissible if compensated) of property and must, or state officials could with impunity destroy property rights in detail. Id. at 949 (citations omitted and emphasis added). Similarly, the Eighth Circuit held that city officials who had forbidden builders from completing a shopping mall on land that had been zoned for the mail’s construction deprived the builders of a property interest, even though the city never officially revoked the applicable zoning classification. See Westborough Mall, Inc. v. City" }, { "docid": "17285401", "title": "", "text": "the plausibility of defendants’ asserted reasons for decision— and we do not — this Court is skeptical that Herró has established a prima facie equal protection claim. As we stated in a recent case involving applications for building permits, “A person bringing an action under the Equal Protection Clause must show intentional discrimination against him because of his membership in a particular class, not merely that he was treated unfairly as an individual.” New Burnham Prairie Homes v. Village of Burnham, 910 F.2d 1474, 1481 (7th Cir.1990) (citations omitted). The district court in this case acknowledged New Burnham but distinguished it, ruling that: [ujnlike the plaintiffs in New Burnham, Herró does not merely claim to have been treated differently than some other person.... he has shown that the adverse action taken against him was purportedly based on just two concerns ... and that each of these concerns applied with equal force nine months later when Henry’s application was granted for the same building. Herro, 817 F.Supp. at 772. The court ruled that the Equal Protection Clause prohibited “unfathomable” discrimination, in which an arbitrary state action signaled reliance on an otherwise indiscernible classification. Id. Yet Herro’s brief reveals that his claim is exactly that of being “treated differently than some other person,” due not to his membership in some nebulous class but to the facts that Henningsen may have directed animosity toward him and that other Committee members may have been willing to sanction this personal prejudice. See Pl.Br. 14r-15; Pl.Reply Br. 1-3 (asserting that Hen-ningsen had previously made baseless claims against Herro’s family and that Henningsen was motivated by “personal whim, prejudice, and capriciousness”). At least one lower court has interpreted our directives in this area to mean that claims of state action motivated by personal vendettas “are hardly the type of allegations necessary to sustain an equal protection claim.” Universal Sec. Ins. Co. v. Koefoed, 775 F.Supp. 240, 247 (N.D.Ill.1991) (relying on New Bumhmam to dismiss equal protection claim based on allegations that state official engaged in vendetta to destroy plaintiff); see also Albright v. Oliver, 975 F.2d 343," }, { "docid": "20764414", "title": "", "text": "did not strip on stage but merely appeared, as it were, fully unclothed down to the pasties and bikini bottoms. The plaintiff reluctantly applied for a supplementary license to permit “exotic dancing.” This was denied, but the tavern continued to exhibit “exotic dancing” in the form described, with some weird touches, such as dancers who sucked on their breasts while hanging upside down. The erotic character of the entertainment was not concealed. One dancer allowed a customer to slip money between her breasts. Another acknowledged that she tried to “turn guys on” in order to get tips. Others simulated intercourse. When the tavern’s liquor license came up for renewal at the end of its one-year term, a hearing was held at which residents of the immediate neighborhood opposed renewal on grounds of noise, traffic, and litter, but also moral disapproval of the entertainment. One neighbor complained that a person had come out of the tavern and urinated in his mailbox. The license was not renewed, and this suit ensued. The plaintiff complains primarily about the vagueness of the ordinance governing grants and renewals of liquor licenses— which so far as bears on this case requires merely a determination of “whether or not the applicant’s proposed operations are basically compatible with the normal activity of the neighborhood in which the licensed premises is to be located,” Milwaukee Code of Ordinances § 90-35-1-e- — and of the category in the application form “exotic dancers/male and/or female strippers.” The vagueness of the category is relevant, however, only if the City violated the plaintiffs rights by refusing to renew its liquor license. If it did, the next question would be whether the City committed a further violation by refusing to grant an “exotic dancers” supplement to the plaintiffs cabaret license. But if the City was entitled to conclude that the nature of the entertainment in the plaintiffs tavern, whatever one calls it, was so inappropriate to the neighborhood as to justify not renewing the liquor license (since the plaintiff was uninterested in switching to a form of entertainment that the neighbors would not have" }, { "docid": "17285402", "title": "", "text": "Clause prohibited “unfathomable” discrimination, in which an arbitrary state action signaled reliance on an otherwise indiscernible classification. Id. Yet Herro’s brief reveals that his claim is exactly that of being “treated differently than some other person,” due not to his membership in some nebulous class but to the facts that Henningsen may have directed animosity toward him and that other Committee members may have been willing to sanction this personal prejudice. See Pl.Br. 14r-15; Pl.Reply Br. 1-3 (asserting that Hen-ningsen had previously made baseless claims against Herro’s family and that Henningsen was motivated by “personal whim, prejudice, and capriciousness”). At least one lower court has interpreted our directives in this area to mean that claims of state action motivated by personal vendettas “are hardly the type of allegations necessary to sustain an equal protection claim.” Universal Sec. Ins. Co. v. Koefoed, 775 F.Supp. 240, 247 (N.D.Ill.1991) (relying on New Bumhmam to dismiss equal protection claim based on allegations that state official engaged in vendetta to destroy plaintiff); see also Albright v. Oliver, 975 F.2d 343, 348 (7th Cir.1992) (“the state’s act of singling out an individual for differential treatment does not itself create the class”) (emphasis in original), affirmed, — U.S. -, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). It is true that older eases from this Circuit suggest a broader reach to the Equal Protection Clause. See, e.g., Falls v. Town of Dyer, 875 F.2d 146 (7th Cir.1989) (holding that a class of only one member can still complain of discrimination against his tiny class if he can show that a combination of legislative and executive action has singled him out for unique treatment). Yet we think that more recent cases, particularly Albright, place additional burdens on plaintiffs to identify the classification behind even a “class of one.” Perhaps Herro’s claim could be read as alleging discrimination based on his membership in a classification consisting of all members of the Herró family applying for new tavern licenses; this is slightly stronger than alleging no class at all, but we are not convinced that it would establish a prima facie" }, { "docid": "19060235", "title": "", "text": "clause of the Fourteenth Amendment. This claim does not assert either of the two common types of equal protection claims: the singling out of member of a vulnerable group for unequal treatment, or a challenge to laws or policies alleged to make irrational distinctions. Esmail v. Macrane, 53 F.3d 176, 178 (7th Cir.1995). Instead, as in Es-mail, the allegations in this case are that a “powerful public official picked on a person out of sheer vindictiveness.” Id. 53 F.3d at 178. In Esmail, the plaintiff was a liquor store owner, and the defendant was the mayor of the city where the plaintiffs store was located. The defendant denied the plaintiffs renewal liquor license application on “trumped-up” charges. Subsequently, the state courts ordered that the plaintiffs license be renewed. The plaintiff then sued in federal court, alleging a denial of his right to equal protection under the Fourteenth Amendment. According to the complaint, the defendant had renewed the liquor licenses of other people who had engaged in the same or similar conduct as that which had been the reason for the plaintiffs renewal application being denied. The plaintiff listed specific examples of other people who were treated more favorably than the plaintiff. The Seventh Circuit held that the complaint stated a claim under the equal protection clause of the Fourteenth Amendment. However, the Seventh Circuit also held that the plaintiff would have to prove that the action taken by the state, whether in the form of prosecution or otherwise, was a spiteful effort to “get” him for reasons wholly unrelated to any legitimate state objective. Id. 53 F.3d at 180. Similarly, the plaintiffs here allege that Tews and Swartz engaged in unusual delay in approving their second plat, and unusual and discriminatory review of their development, which would be a violation of their Fourteenth Amendment right to equal protection. However, except for one parenthetical phrase in their complaint, the plaintiffs never allege or argue that others, similarly situated, were treated more favorably. Nor do the plaintiffs give any examples of other subdivision developers who were treated better. As stated in Esmail," }, { "docid": "22875955", "title": "", "text": "laundering under 18 U. S. C. § 1957, as well as racketeering and conspiracy under § 1962. Among the predicate acts supporting these charges were four counts of mail fraud under § 1341. The indictment alleged that Cleveland and Goodson had violated § 1341 by fraudulently concealing that they were the true owners of TSG in the initial license application and three renewal applications mailed to the State. They concealed their ownership interests, according to the Government, because they had tax and financial problems that could have undermined their suitability to receive a video poker license. See La. Rev. Stat. Ann. § 27:310(B)(1) (West Supp. 2000) (suitability requirements). Before trial, Cleveland moved to dismiss the mail fraud counts on the ground that the alleged fraud did not deprive the State of “property” under § 1341. The District Court denied the motion, concluding that “licenses constitute property even before they are issued.” 951 F. Supp. 1249, 1261 (ED La. 1997). A jury found Cleveland guilty on two counts of mail fraud (based on the 1994 and 1995 license renewals) and on money laundering, racketeering, and conspiracy counts predicated on the mail fraud. The District Court sentenced Cleveland to 121 months in prison. On appeal, Cleveland again argued that Louisiana had no property interest in video poker licenses, relying on several Court of Appeals decisions holding that the government does relinquish “property” for purposes of § 1341 when it isa permit or license. See United States v. Shotts, 145 3d 1289, 1296 (CA11 1998) (license to operate a bail bonds business); United States v. Schwartz, 924 F. 2d 410, 418 (CA2 (arms export license); United States v. Granberry, 908 2d 278, 280 (CA8 1990) (school bus operator’s permit); Toulabi v. United States, 875 F. 2d 122, 125 (CA7 1989) (chauffeur’s license); United States v. Dadanian, 856 F. 2d 1392 (CA9 1988) (gambling license); United States v. Murphy, 836 F. 2d 248, 254 (CA6 1988) (license to conduct charitable bingo games). The Court of Appeals for the Fifth Circuit nevertheless affirmed Cleveland’s conviction and sentence, United States v. Bankston, 182 F. 3d 296," }, { "docid": "22338531", "title": "", "text": "example, States may impose valid time, place, or manner restrictions. See Cox v. New Hampshire, 312 U. S. 569 (1941). North Carolina seeks to come within the exception by alleging a heightened interest in regulating those who solicit money. Even assuming that the State’s interest does justify requiring fundraisers to obtain a license before soliciting, such a regulation must provide that the licensor “will, within a specified brief period, either issue a license or go to court.” Freedman v. Maryland, 380 U. S. 51, 59 (1965). That requirement is not met here, for the Charitable Solicitations Act (as amended) permits a delay without limit. The statute on its face does not purport to require when a determination must' be made, nor is there an administrative regulation or interpretation doing so. The State argues, though, that its history of issuing licenses quickly constitutes a practice effectively constraining the licensor’s discretion. See Poulos v. New Hampshire., 345 U. S. 395 (1953). We cannot agree. The history to which the State refers relates to the period before the 1985 amendments, at which time professional fundraisers were permitted to solicit as soon as their applications were filed. Then, delay permitted the speaker’s speech; now, delay compels the speaker’s silence. Under these circumstances, the licensing provision cannot stand. V We hold that the North Carolina Charitable Solicitations Act is unconstitutional in the three respects before us. Accordingly, the judgment of the Court of Appeals is Affirmed. North Carolina Gen. Stat. § 131C-17.2 (1986) provides: “(a) No professional fund-raising counsel or professional solicitor who contracts to raise funds for a person established for a charitable purpose may charge such person established for a charitable purpose an excessive and unreasonable fund-raising fee for raising such funds. “(b) For purposes of this section a fund-raising fee of twenty percent (209f) or less of the gross receipts of all solicitations on behalf of a particu lar person established for a particular charitable purpose is deemed to be reasonable and nonexcessive. “(c)- For purposes of this section a fund-raising fee greater than twenty percent (20%) but less than thirty-five percent" }, { "docid": "17285398", "title": "", "text": "Committee members (minus Henningsen, who was no longer an alderman but appeared at the meeting in support of the new applicant) voted to approve the license application of Ralph Henry (“Henry”) for the same premises. At that meeting, Henningsen stated that Henry was putting “substantial money” into the premises, which would be “of a class now or the type now that it’s not going to attract the type of unsavory patrons that the place had in years gone by” (Def.App. 393). Herró did not pursue a state court review of the license denial pursuant to Wisconsin law but instead brought this action. The district judge initially ruled that Herró had established a prima facie violation of equal protection that would survive defendants’ motion to dismiss and motion for summary judgment. Herro v. City of Milwaukee, 817 F.Supp. 768 (E.D.Wis.1993). Judge Reynolds asked defendants to submit evidence of the reasons, beyond the asserted “overcon-centration of outlets” which he deemed unsupported, for their decision to reject one application and to grant’ the next. Defendants submitted two reasons, indicating that fewer outlets were operating in the area and that Henry had obtained work permits, thus demonstrating a willingness to do the repairs that Herró had not. Subsequently, on May 16,1994, the district judge granted summary judgment for defendants (PLApp. A-2). ANALYSIS The district court granted summary-judgment after defendants presented evidence that their licensing decision was not totally irrational or arbitrary. This limited showing — that the challenged action was rationally related to a legitimate state interest — is sufficient to defeat an equal protection claim that does not allege infringement on a fundamental right or reliance on a suspect classification. See Scariano v. Justices of Supreme Court of State of Ind., 38 F.3d 920, 924 (7th Cir.1994); DeSalle v. Wright, 969 F.2d 273, 275 (7th Cir.1992). Plaintiff concedes that we must evaluate his claim according to the more lenient rational basis review (Pl.Br. 4-5), and we do so de novo. Cliff v. Bd. of School Commissioners, City of Indianapolis, 42 F.3d 403 (7th Cir.1994). The district court here concluded that although there were" }, { "docid": "22066266", "title": "", "text": "this Court acknowledged a generation ago, “our Nation has had a long and unfortunate history of sex discrimination.” Frontiero v. Richardson, 411 U. S. 677, 684 (1973). Through a century plus three decades and more of that history, women did not count among voters composing “We the People”; not until 1920 did women gain a constitutional right to the franchise. Id., at 685. And for a half century thereafter, it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any “basis in reason” could be conceived for the discrimination. See, e. g., Goesaert v. Cleary, 335 U. S. 464, 467 (1948) (rejecting challenge of female tavern owner and her daughter to Michigan law denying bartender licenses to females — except for wives and daughters of male tavern owners; Court would not “give ear” to the contention that “an unchivalrous desire of male bartenders to . . . monopolize the calling” prompted the legislation). In 1971, for the first time in our Nation’s history, this Court ruled in favor of a woman who complained that her State had denied her the equal protection of its laws. Reed v. Reed, 404 U. S. 71, 73 (holding unconstitutional Idaho Code prescription that, among “‘several persons claiming and equally entitled to administer [a decedent’s estate], males must be preferred to females’ ”). Since Reed, the Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature — equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities. See, e. g., Kirchberg v. Feenstra, 450 U. S. 455, 462-468 (1981) (affirming invalidity of Louisiana law that made husband “head and master” of property jointly owned with his wife, giving him unilateral right to dispose of such property without his wife’s consent); Stanton v. Stanton, 421 U. S. 7 (1975) (invalidating Utah requirement that parents support boys until age 21, girls only until age" }, { "docid": "22338506", "title": "", "text": "Brief for Appellants 10-11; Reply Brief for Appellants 2-3. The Act also provides that, prior to any appeal for funds, a professional fundraiser must disclose to potential donors: (1) his or her name; (2) the name of the professional solicitor or professional fundraising counsel by whom he or she is employed and the name and address of his or her employer; and (3) the average percentage of gross receipts actually turned over to charities by the fundraiser for all charitable' solicitations conducted in North Carolina within the previous 12 months. Only the third disclosure requirement is challenged here: Finally, professional fundraisers may not solicit without an approved license. In contrast, volunteer fundraisers may solicit immediately upon submitting a license application. N. C. Gen. Stat. § 131C-4 (1986). A licensing provision had been in effect prior to the 1985 amendments, but the prior law allowed both professional and volunteer fundraisers to solicit as soon as a license application was submitted. A coalition of professional fundraisers, charitable organizations, and potential charitable donors brought suit against various government officials charged with the enforcement of the Act (hereinafter collectively referred to as North Carolina or the State), seeking injunctive and declaratory relief. The District Court for the Eastern District of North Carolina ruled on summary judgment that the foregoing aspects of the Act on their face unconstitutionally infringed upon freedom of speech (it also found the Act constitutional in other respects not before us now), and enjoined enforcement of the unconstitutional provisions. 635 F. Supp. 256 (1986). The Court of Appeals for the Fourth Circuit affirmed in a per curiam opinion. 817 F. 2d 102 (judgment order), and we noted probable jurisdiction, 484 U. S. 911 (1987). II We turn first to the “reasonable fee” provision. In deciding this issue, we do not write on a blank slate; the Court has heretofore twice considered laws regulating the financial aspects of charitable solicitations. We first examined such a law in Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980). There we invalidated a local ordinance requiring charitable solicitors to use, for charitable" } ]